THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


SELECTED  ARGUMENTS 

LECTURES  AND  MISCELLANEOUS 

PAPERS  OF 


RANDELL  HUNT 


EDITED   BY    HIS    NEPHEW 

WILLIAM   HENRY  HUNT 

ASSOCIATE   JUSTICE    OF   THE    SUPREME    COURT    OF   MONTANA 


F.  F.  HANSELL   &   BROTHER 

NEW  ORLEANS,  LA. 

1896 


The  Riverside  Press,  Cambridge,  Mass.,V.  ,S.  A. 
Printed  by  H.  O.  Houghton  &  Co. 


CONTENTS. 

BIOGRAPHICAL  SKETCH v 

A  COURT,  A  TEMPLE  OF  JUSTICE 1 

AN  HISTORICAL  DISCOURSE  UPON  THE  UNITED  STATES         .  4 
M 

[~     THE  LOUISIANA  RETURNING  BOARD  OF  1876     ...  25 

V3      CITIZENSHIP  AND  ALLEGIANCE        ......  40 

c=      ARGUMENT  IN  THE  SLAUGHTER-HOUSE  CASES    ...  64 

•••< 

£~      POLITICAL  AFFAIRS  IN  LOUISIANA 94 

-!      LECTURE  ON  THE  LAW 128 

COMMERCE 188 

S£       ADDRESS  TO  LAW  STUDENTS        ......  214 

{£}      REPORT  UPON  THE  LAW  OF  EVIDENCE  .....  226 

J5     THE  RIGHTS  OF  THE  STATES       ......  253 

THE  LOUISIANA  STATE  LOTTERY 270 

THE  REPUBLICAN  PARTY  IN  LOUISIANA     ....  308 

cj      COUNTING  THE  ELECTORAL  VOTE 313 

TRIHUTE  TO  MR.  TULANE                                                 .         .  324 
v: 

O      ADDRESS  TO  MEDICAL  STUDENTS 326 

KI       SPEECH  FOR  BELL  AND  EVERETT 328 

^'       INDEX                                                                                                 .  337 


461500 


BIOGRAPHICAL    SKETCH. 


FOR  just  half  a  century,  from  1832  to  1882,  the  name  of 
Randell  Hunt  was  identified  with  many  of  the  chief  events 
in  the  history  of  the  Southern  States  of  this  country. 

He  was  conspicuous  in  the  Unionist  convention  which 
considered  the  ordinance  of  nullification  in  South  Caro- 
lina ;  he  was  a  constitutional  lawyer  of  reputation  and  of 
profound  learning  ;  he  was  a  professor  of  law  in  the 
University  of  Louisiana  for  about  forty  years,  and  for  a 
long  time  its  president ;  he  was  a  leader  of  the  state  sen- 
ators in  the  legislature  of  his  State ;  he  took  a  prominent 
part  in  seeking  to  preserve  the  Union  in  gloomy  days 
when  secession  was  gaining  ground  in  the  South ;  he  was 
an  orator  whose  voice  rose  in  eloquent  and  fearless  appeals 
for  the  safety  of  the  nation  when  civil  war  seemed  im- 
minent ;  he  was  for  over  twenty-five  years,  as  Chief 
Justice  Chase  pronounced  him,  the  "  king  of  the  bar  of 
Louisiana  :  "  yet,  aside  from  mere  newspaper  accounts, 
no  memoir  of  his  life  has  been  written.  Certainly  the  in- 
fluence of  such  a  man  has  formed  an  important  part  of 
the  history  of  the  States  in  which  he  lived,  and  a  brief 
account  of  his  political  and  professional  deeds,  and  of  the 
virtues  of  a  career  which  is  so  indelibly  identified  with 
the  progress  of  his  time,  may  be  accepted  as  a  well-meant 
contribution  to  the  biographical  records  of  our  country. 


vi  BIOGRAPHICAL  SKETCH. 

Thomas  Hunt,  the  father  of  Randell,  was  born  at  Nas- 
sau, in  the  West  India  Islands.  His  father,  Robert  Hunt, 
was  a  native  of  England,  and  was  colonial  governor  of 
the  Bahama  Islands,  and  president  of  the  King's  Coun- 
cil at  Nassau,  in  the  island  of  New  Providence.  Thomas 
Hunt  was  a  graduate  of  the  University  of  Edinburgh, 
Scotland,  and,  when  a  young  man  of  about  twenty-one 
years,  emigrated  from  the  Bahamas.  He  was  a  scholar 
and  a  generous  gentleman.  Pie  left  the  fortunes  and 
prospects  of  an  ancient  English  family  to  repair  to 
Charleston,  South  Carolina,  and  settled  there  because  he 
preferred  the  larger  liberty  established  under  the  Consti- 
tution and  laws  of  the  United  States  to  the  monarchical 
institutions  of  Great  Britain.  He  was  of  commanding 
presence,  distinguished  ancestry,  and  powerful  moral  char- 
acter. There  was  a  custom  of  his  days  in  the  South, 
following  the  aristocratic  tendencies  of  ante-Revolution 
people,  to  acquire  landed  estates  upon  which  the  family 
home  was  established,  and  Mr.  Hunt,  like  other  gentle- 
men of  the  times,  bought  a  plantation,  Woodville,  on  the 
Wando  River,  a  branch  of  the  Cooper,  about  thirty  miles 
from  the  city  of  Charleston.  He  soon  renounced  his  al- 
legiance to  the  king  of  England,  and  became  an  American 
planter  and  lawyer,  having  studied  law  in  the  office  of 
Mr.  John  J.  Pringle. 

Randell  Hunt's  mother  was  the  daughter  of  John 
Gaillard  and  Judith  Peyre,  both  descendants  of  the 
Huguenots  who  went  to  Charleston  about  the  year  1687. 
While  visiting  abroad,  Louisa,  their  daughter,  was  born 
in  the  British  Channel,  close  to  the  shores  of  France. 
Two  of  her  brothers,  John  and  Theodore  Gaillard,  were 
for  a  long  time  in  the  public  service  of  South  Carolina  : 
the  former  as  a  United  States  senator  for  over  twenty-one 
years,  and  president  pro  tern,  for  fourteen  years  ;  the  latter 


BIOGRAPHICAL  SKETCH.  vii 

as  an  associate  judge  of  the  Court  of  Common  Pleas  up 
to  his  death  in  1829.1 

Louisa  Gaillard  and  Thomas  Hunt,  having  become 
acquainted  in  the  then  famous  society  of  Charleston,  were 
married  January  1,  1805,  and  lived  to  have  twelve  chil- 
dren born  to  them,  of  whom  Randell  Plunt  was  the  second, 
the  date  of  his  birth  being  December  31,  1806. 

The  schoolboy  days  of  Randell  were  passed  under  the 
tuition  of  the  best  instructors  in  the  city  of  Charleston 
until  he  became  old  enough  to  attend  Bishop  England's  2 
academy  in  that  city. 

The  family  used  to  pass  the  Easter  holiday  season  on 
the  plantation,  and  the  departure  of  Randell  for  a  "  big 
man's  school "  greatly  impressed  the  slaves.  The  mode 
of  travel  between  the  plantation  and  Charleston  was  en- 
tirely by  boat,  manned  by  six  stalwart  negroes,  who 
thought  it  no  small  honor  to  row  the  young  man  from  his 
home  to  the  city.  The  negroes  generally  sang  as  they 
rowed  the  boat,  and  the  sweet  refrain  of  an  improvised 
melody, "  Massa  Randell  is  going  to  a 'big  man's  school,'" 
echoed  in  the  forest  as  they  moved  along  the  picturesque 
shores  of  the  Wando. 

Randell  is  described  as  a  clear-complexioned  boy,  with 

1  Benton,  iu  his  Thirty  Years'  View,  has  dwelt  on  the  character  of 
Mr.  Gaillard   as  that   of  a  wise   and   public-spirited  senator.     His 
brother,  Judge  Gaillard,  was  a  scholar  and  a  wit  as  well  as  a  learned 
magistrate.    Another  kinsman,  Dominick  Augustiu  Hall,  went  to  live 
in  Louisiana,  where  he  became  the  first  district  judge  of  the  United 
States.     It  was  by  his  order  that  General  Jackson,  then  hero  of  the 
battle  of  New  Orleans,  was  fined  for  invasion  of  the  privilege  of  the 
writ  of  habeas  corpus.    Judge  Martin,  in  his  History  of  Louisiana,  treats 
with  deserved  respect  the  character  of  Judge  Hall.    Judge  Hall  was 
appointed  in  1813.     He  was  not  to  be  intimidated,  and  bore  himself 
with  stern  judicial  impartiality. 

2  Bishop  England  was  Roman  Catholic  Bishop  of  Charleston,  and, 
until  the  appointment  of  Cardinal  McCloskey,  perhaps  the  most  dis- 
tinguished of  the  prelates  of  his  church  hi  America. 


vni  BIOGRAPHICAL   SKETCH. 

expressive  gray  eyes,  brown  hair,  a  large  mouth,  and  a 
head  of  noticeable  height  above  the  ears.  He  was  not 
tall,  nor  was  he  at  all  handsome  ;  but  his  countenance 
was  pleasing,  his  face  intellectual,  his  expression  thought- 
ful, and  his  manner  particularly  gentle.  The  teachers  at 
Bishop  England's  school  were  surprised  by  his  great  in- 
dustry, and  impressed  by  his  extraordinary  love  of  read- 
ing. He  devoured  every  book  within  his  reach,  and  re- 
membered what  he  read.  This  wonderful  taste  for  reading, 
however,  did  not  prevent  a  genuine  love  of  sport  in  him. 
Indeed,  he  was  very  fond  of  fishing  and  hunting,  being 
a  keen  and  successful  sportsman  and  a  remarkably  fine 
wing-shot.  He  would  tramp  miles  and  miles  while  look- 
ing for  game,  but  when  he  rested  it  was  his  invariable 
habit  to  take  from  his  pocket  a  book  and  intently  read  it. 

In  1821  he  graduated  first  in  his  class  from  Bishop 
England's  academy,  and  entered  the  College  of  South 
Carolina,  at  Columbia,  an  institution  then  boasting  a 
well  -  acquired  reputation  as  a  seat  of  learning.  Dr. 
Thomas  Cooper,  the  scholar,  author,  and  political  econo- 
mist, was  president  of  the  college  at  that  time. 

The  graduates  of  the  class  of  1825  included  several 
men  who  attained  national  distinction.  Among  the  first 
five  of  the  class  were  Stephen  Elliott  and  James  A.  Ham- 
mond. The  former  became  professor  of  the  evidences 
of  Christianity  and  sacred  literature  in  the  College  of 
South  Carolina,  a  doctor  of  divinity,  and  a  widely  ad- 
mired pulpit  orator  :  he  was  made  Protestant  Episcopal 
Bishop  of  Georgia.  Hammond,  at  the  time  when  he  ap- 
peared in  college,  was  of  surprising  personal  beauty.  The 
exalted  honor  —  for  such  it  was  accorded  in  his  day  — 
of  being  governor  of  the  high-spirited  and  aspiring  State 
of  South  Carolina,  the  haughty  temper  of  which  was  like 
that  of  some  independent  republic,  fell  to  him  in  the 


BIOGRAPHICAL   SKETCH.  ix 

period  of  early  manhood.1  After  a  subsequent  retirement 
of  years  he  reappeared  in  the  stormy  period  of  the  slavery 
agitation  as  senator  in  Congress.  To  Hammond  is  prop- 
erly to  be  ascribed  the  origin  of  the  word  "mudsills  "  as 
applied  to  a  portion  of  the  people  of  the  North  whom  he 
likened  to  the  slaves  of  the  South.  The  speech  using  the 
term  was  made  upon  the  bill  for  the  admission  of  Kansas 
to  the  Union. 

When  the  honors  of  college  were  distributed,  Randell 
Hunt  received  the  first.  Some  action  of  the  authorities 
had  changed  the  usual  mode  of  assigning  college  honors. 
Instead  of  giving  the  highest  to  the  student  of  average 
excellence  in  the  general,  it  was  determined  to  report  the 
standing  and  scholarship  of  graduates  in  each  depart- 
ment separately.  The  result  was  that  Randell  Hunt  was 
awarded  the  first  place  in  every  one  of  his  studies.  A 
letter  from  Dr.  Cooper  bore  the  intelligence  to  his  father, 
and  filled  his  heart  with  purest  happiness.  To  accomplish 
such  a  feat,  Randell  had  made  it  his  devoted  practice  to 
spend  twelve  hours  out  of  every  twenty-four  in  study. 

As  a  student  of  the  classics  and  history,  his  reading  had 
made  him  conspicuous  for  his  knowledge  and  cultivation. 
His  memory  had  become  a  prodigious  one,  nor  was  he 
without  success  already  as  a  public  speaker ;  and  his  pro- 
fessors sent  him  back  to  Charleston  to  do  honor  to  his 
Alma  Mater  in  a  career  predicted  to  be  full  of  promise. 

The  profession  of  the  law  very  naturally  attracted  him, 
and  he  entered  the  office  of  Mr.  William  Lanee,  a  leader 
of  the  bar  of  Charleston.  With  the  close  habits  of  study 
which  he  pursued,  and  his  superior  education  upon  which 
to  found  a  legal  education,  Mr.  Hunt  was  readily  admit- 
ted to  practice  in  the  year  1828. 2 

1  From  184-2  to  1844. 

2  Mr.  Boozee,  the  clerk  of  the  Supreme  Court  of  South  Carolina, 
writes  that  the  roll  upon  which  Mr.  Hunt's  name,  together  with  the 


x  BIOGRAPHICAL   SKETCH. 

Of  his  first  appearance  in  presenting  a  case  at  the  bar 
of  South  Carolina  little  can  be  ascertained ;  but  that  he 
soon  became  prominent  is  evidenced  by  the  newspapers,  in 
1883,  reporting  in  full,  with  editorial  comment,  his  argu- 
ment upon  the  right  of  a  state  court  to  require  a  sworn 
allegiance  to  the  State  before  admitting  an  alien  to  be- 
come a  citizen  of  the  United  States.  The  speech  of  Mr. 
Hunt  (published  among  his  other  writings)  might  well 
be  quoted  by  any  court,  and  is  an  exhaustive  review  of 
the  powers  of  the  state  courts  under  the  federal  laws  of 
naturalization.  No  lawyer  of  twenty-seven  years  of  age 
could  have  delivered  so  comprehensive  and  logical  an 
argument  upon  such  a  broad  question  unless  possessed  of 
close  reasoning  powers,  with  a  mind  capable  and  trained 
in  methods  of  thought  and  study. 

Wending  his  way  homeward  one  night,  about  this 
time,  Mr.  Thomas  Hunt,  attracted  by  the  crowd  which 
thronged  at  a  late  hour  of  the  night  one  of  the  city 
court-houses  of  Charleston,  made  his  way  into  it.  The 
scene  was  an  animated  one.  The  court  was  sitting. 
The  hall  where  the  session  was  held  was  ablaze  with 
light.  The  multitude,  and  the  judges  themselves,  hung 
upon  the  glowing  words  of  a  young  but  eloquent  speaker, 
who  held  them  entranced,  and  in  whom  Mr.  Hunt  soon 
recognized  his  son  liandell,  already  a  man  of  distinction. 
He  paused,  and  then  stood  delighted.  At  last,  overcome 
by  the  emotions  natural  to  such  a  situation,  there,  in  the 
presence  of  the  spectators,  he  added  to  the  triumph  of 
his  son  in  the  tears  of  a  father's  joy,  a  tribute  which,  ac- 
cording to  the  constitution  of  man's  being,  surpasses  all 
others  that  can  be  rendered. 

But  Mr.  Hunt  was  destined  to  enter  the  political  field, 

exact  (late  of  his  admission,  appeared,  was  destroyed  during  the  war. 
The  date  is  given  by  O'Xeall's  Bench  and  PMC  of  South  Carolina  as 
18128. 


BIOGRAPHICAL   SKETCH.  xi 

and  to  fervently  espouse  the  national  cause,  the  insepara- 
bility of  the  States  of  the  Union  from  the  Union  itself. 

South  Carolina  was  agitated  profoundly  by  the  tariff 
law  of  1828,  which  was  affecting-  the  planting-  States  so 
visibly  that  the  menacing  doctrine  of  a  nullification 
movement  was  gaining  ground.  John  C.  Calhoun  led  the 
opposition  to  the  protective  system  of  the  law  of  1828, 
and  kept  alive  the  disposition  to  disregard  the  federal 
laws  of  impost  duties.  Andrew  Jackson,  then  President, 
was  not  in  opposition  to  a  protective  system.  In  1831 
Calhoun  issued  his  famous  "  Address  to  the  People  of  the 
State  of  South  Carolina,"  announcing  the  Constitution  to 
be  a  mere  compact  between  sovereign  States  ;  that  the  gen- 
eral government  is  the  mere  agent  between  those  sovereign 
States  ;  that  whenever  any  one  of  the  parties  to  the  com- 
pact, any  State,  considers  any  law  made  by  the  general 
government  to  be  iinconstitutional,  it  may  "  nullify"  that 
law,  or  declare  and  treat  it  as  void.  Calhoun  again,  in 
1832,  issued  an  address  embodying  the  doctrine  of  state 
rights,  and  advising  issue  to  be  taken  on  account  of  the 
sufferings  of  the  South. 

The  legislature  of  South  Carolina  was  convened,  and 
by  it  a  convention  ordered  to  assemble  on  November  19, 
1832,  "  to  consider  the  character  and  extent  of  the  usur- 
pations of  the  general  government." 

Political  excitement  was  general  throughout  the  nation 
and  at  fever  heat  in  the  State  of  South  Carolina,  where 
the  struggle  of  the  Unionists,  which  had  been  a  hard  one 

OO  ' 

for  several  years,  was  about  drawing  to  its  close.  The 
nullifiers  were  in  a  large  majority.  They  made  inflamed 
speeches,  denounced  the  opposition  in  violent  terms,  and 
organized  defiantly.  They  wore  palmetto  cockades,  like 
the  Southern  secessionists  just  before  the  war  of  the 
Rebellion.  They  looked  forward  to  war,  and  measures 
to  precipitate  it  were  set  on  foot.  For  a  Union  speech 


xii  BIOGRAPHICAL   SKETCH. 

made  at  this  season  at  a  meeting  held  in  a  church  build- 
ing, Randell  Hunt  was  placarded  and  threatened  to  be 
hanged.  But  he  and  his  brothers  adhered  unwaveringly 
to  the  cause  of  the  country. 

It  is  not  material  to  recite  the  history  of  the  passage  of 
the  ordinance  of  nullification,  nor  of  the  excitement  prev- 
alent generally  during  the  year  1832.  The  student  of 
the  history  of  those  times  will  find  an  abundant  oppor- 
tunity for  research  into  a  field  full  of  the  most  interest- 
ing events,  and  he  will  be  impressed  with  the  powerful  in- 
fluence wielded  by  the  orators  and  writers  who  were 
conspicuous  in  the  movements  of  the  times.  But  the 
Unionists  were  determined  to  express  a  last  dissent  from 
the  action  of  the  opposition,  and  a  state  convention,  with 
representatives  from  all  parts  of  South  Carolina,  met  just 
after  the  nullification  convention  to  record  the  sentiments 
of  the  Union  party.  Randell  Hunt  was  a  prominent 
figure  in  the  assembly,  and  epitomized  the  views  of  the 
convention,  and  the  questions  it  should  consider,  in  three 
sentences  :  — 

"  That  the  Union  party  acknowledges  no  allegiance  to 
any  government  except  that  of  the  United  States." 

"  That  in  referring  this  resolution  to  the  general  com- 
mittee, they  be  instructed  to  inquire  whether  it  is  not 
expedient  to  give  a  military  organization  to  the  Union 
party  throughout  the  State." 

"  Whether  it  will  not  be  necessary  to  call  in  the  assist- 
ance of  the  general  government  for  maintaining  the  laws 
of  the  United  States  against  the  arbitrary  violence  which 
is  threatened  by  the  late  convention." 

The  work  of  the  convention  is  well  expressed  by  the 
following  terse  summary  of  its  acts  : l  — 

1  From  a  paper  by  Mr.  Gaillarcl  Hunt  entitled  "  South  Carolina 
and  Nullification,"  published  in  the  Political  Science  Quarterly  i'or 
June,  1891. 


BIOGRAPHICAL  SKETCH.  xiii 

"  The  resolutions  which  were  adopted  declared  that  the 
ordinance  of  nullification  violated  the  Constitution  of  the 
United  States,  and  had  virtually  destroyed  the  Union, 
since,  by  preventing  the  general  government  from  enfor- 
cing its  laws  within  the  boundaries  of  the  State,  it  made 
the  State  a  sovereignty  paramount  to  the  United  States. 
They  denounced  the  provisions  of  the  ordinance  as  tyran- 
nical and  oppressive,  and  the  test  oath  as  especially  incom- 
patible with  civil  liberty,  in  that  it  disfranchised  nearly 
half  the  citizens  of  the  State.  They  pointed  scornfully 
to  the  project  of  a  standing  army  in  the  State.  Such  an 
army  must  necessarily  be  inadequate  to  protect  the  nul- 
lification party  from  the  coercive  power  of  the  United 
States  ;  its  only  object,  therefore,  must  be  to  tyrannize 
over  Carolina  Unionists.  They  concluded  by  declaring 
the  continued  opposition  of  the  signers  to  the  tariff,  and 
their  determination  to  protect  themselves  against  intoler- 
able oppression.  The  resolutions  were  signed  by  all  the 
members  of  the  convention,  about  one  hundred  and 
eighty  in  number." 

The  difficulty  was,  however,  that  the  sentiment  of  the 
people  was  adverse  to  the  resolutions.  Mr.  Hunt  was 
troubled  by  the  dissensions  dividing  the  people,  and  the 
future  seemed  dark. 

To  add  to  his  dread,  as  a  citizen,  of  the  consequences 
destined  to  follow  the  Calhouii  policies,  there  now  came 
to  him  affliction  and  trouble  in  his  home ;  but  they  only 
developed  the  same  determination  and  honor  within  him 
towards  his  family  that  had  been  shown  towards  his  State 
in  the  late  preceding  times  of  her  adversity  and  misguided 
policy.  His  father  died  on  December  25,  1830,  leaving 
a  widow  and  twelve  children. 

Just  before  Mr.  Thomas  Hunt's  death  some  reverses  in 
fortune  befell  him,  so  that  when  the  lands  were  sold  and 
the  estate's  debts  paid  there  was  little  left  for  the  support 
of  the  family. 


xiv  BIOGRAPHICAL   SKETCH. 

Charleston  did  not  grow.  Political  disturbances  were 
likely  to  continue  so  long  as  Mr.  Calhoun  and  his  party 
retained  their  influence,  and  to  a  young  man  who  abhorred 
the  doctrines  which  were  gaining  ascendency  in  the  State 
the  prospect  was  by  no  means  bright.  Then,  too,  to 
maintain  the  fashionable  style  of  life  to  which  the  family 
were  accustomed,  and  in  which  other  prominent  house- 
holds of  the  city  of  Charleston  lived,  was  impossible.  A 
change  of  residence  was  thought  best.  Theodore  Gail- 
lard,  also  a  lawyer,  and  Thomas,  a  physician,  brothers  of 
Randell,  concluded  to  go  to  New  Orleans,  Louisiana,  —  of 
all  Southern  cities,  at  that  date,  by  far  the  most  promis- 
ing. The  field  was  a  broad  one,  and  Louisiana  was  justly 
proud  of  numbers  of  professional  men  unexcelled  in 
learning  and  reputation.  Moreover,  the  Hunts  *•  were 

1  Theodore  Gaillard  Hunt  was  a  colonel  in  the  Mexican  war,  and 
a  member  of  Congress  in  1853-54.  He  was  district  attorney,  a 
judge  of  the  criminal  court  in  Xew  Orleans,  and  a  colonel  in  the 
Confederate  army.  He  died  in  Xew  Orleans,  November  15,  1893. 

Dr.  Thomas  Hunt  was  long  the  leading  advocate  of  university 
education  in  the  State,  and  was  a  scholar  and  an  orator  and  a  man 
of  science,  as  well  as  a  physician  and  surgeon  of  consummate  skill 
and  at  the  head  of  his  profession.  He  was  a  surgeon  of  the  Charity 
Hospital.  He  was  the  earliest  and  most  active  of  the  founders  of 
the  Medical  College  of  Louisiana,  and  was  professor  of  physiology 
and  pathology  and  of  special  pathological  anatomy  in  the  medical 
department,  and  dean  of  the  medical  faculty.  lie  received  the 
appointment,  just  before  his  death,  to  be  surgeon  of  the  Marine 
Hospital,  in  the  service  of  the  United  States.  He  was,  when  he  died, 
president  of  the  University  of  Louisiana,  now  the  Tulane  Univer- 
sity of  Louisiana.  An  heroic  service  in  the  interest  of  humanity, 
rendered  in  1834  to  the  brig  Amida,  which  was  wrecked  on  Folly 
Island,  the  cholera  raging  among  passengers  and  crew,  earned  for 
Dr.  Hunt  the  thanks  of  the  city  of  Charleston,  as  "the  intrepid 
physician  of  ''"oily  Island,"  and  at  twenty-four  raised  him  to  distinc- 
tion, lion.  Carleton  Hunt,  an  eminent  lawyer  of  Louisiana,  is  a  son 
of  Dr.  Thomas  Hunt.  Dr.  Hunt  died  March  L'5,  1807. 

One  of  the  vomi^er  brothers  was  William  II.      lie  became  one  of 


BIOGRAPHICAL   SKETCH.  xv 

very  willing  to  turn  their  backs  on  Calhoun's  policies, 
and  identify  themselves  with  a  growing  community  which 
would  preserve  the  Union  as  Daniel  Webster  and  Henry 
Clay  would  have  it  perpetuated. 

New  England  invited  those  in  search  of  education,  and 
Mrs.  Hunt  concluded  to  move  to  New  Haven,  Connecti- 
cut. The  family  left  Charleston  later  in  the  year  1832. 
Randell  went  on  to  New  York,  intending  to  practice  in 
that  city.  The  pecuniary  circumstances  of  his  mother 
and  the  education  of  the  younger  members  of  the  family 
made  his  responsibilities  great.  He  was  unacquainted, 
and,  being  without  means,  the  undertaking  of  establish- 
ing himself  in  the  North  seemed  perilous.  His  brothers 
meanwhile  urged  him  to  make  his  home  in  New  Orleans, 
where  the  prospects  of  immediate  better  circumstances 
invited  him  to  go.  Mr.  Hunt  was  not  in  a  position  to 
run  the  risk  of  having  to  wait  for  professional  success 
in  New  York,  and  a  sense  of  responsibility  not  to  be  post- 
poned caused  him  to  adopt  Louisiana  as  his  home.  From 
obvious  present  conditions  it  is  to  be  regretted  that  he 
did  not  remain  in  New  York,  for  had  he  done  so  his 
ability  and  learning  would  have  found  the  broader  scope 
they  were  entitled  to. 

But  to  New  Orleans  he  went,  content  with  his  decision. 

the  leaders  of  the  bar  of  New  Orleans,  and  was  distinguished  as  a 
very  successful  and  eloquent  advocate.  In  1876  he  was  appointed 
attorney-general  of  Louisiana.  In  1877  he  was  made  an  associate 
justice  of  the  United  States  Court  of  Claims.  In  1881  he  was  ap- 
pointed Secretary  of  the  Xavy  by  President  Garfield.  In  1882  he 
was  made  minister  to  Russia  by  President  Arthur.  He  died  at  St. 
Petersburg,  Russia,  February  28,  1884. 

Copeland,  another  brother,  went,  a  very  young  man,  to  California 
in  1849,  and  died  of  typhoid  fever  in  San  Francisco.  He  had  served 
as  captain  of  a  company  in  the  volunteer  army  of  the  United  States 
in  the  Mexican  war,  and  had  already  given  proof  of  very  uncommon 
abilities  as  a  lawyer. 


xvi  BIOGRAPHICAL   SKETCH. 

In  1833  New  Orleans  was  a  great  commercial  city,  with 
advantages  second  only,  it  seemed,  to  New  York,  and 
with  a  future  far  ahead  of  any  other  city  in  the  West  or 
South.  Its  population  was  growing  and  enterprising, 
its  society  was  distinguished  for  brilliant  men  and 
accomplished  women,  its  climate  was  salubrious,  and 
altogether,  from  a  fair  standpoint  of  the  times,  in  its 
future  it  seemed  to  be  certain  of  becoming  to  the  South 
what  New  York  was  to  the  North.  Surely  the  profes- 
sional field  was  tempting.  The  names  of  Edward  Living- 
ston,1 Etienne  Mazureau,  Francis  Xavier  Martin,  Judah 
P.  Benjamin,  John  II.  Grymes,  Pierre  Soule,  Christian 
Roselius,  George  Eustis,  and  Alfred  Ilennen  made  the 
bar  celebrated  in  Europe  and  America,  and  earned  for 
it  a  reputation  never  surpassed  by  any  State  before  or 
since. 

Little  did  any  of  those  distinguished  men  then  know 
that  there  had  come  into  their  midst  an  ambitious  young- 
Carolinian,  to  whose  powers  and  knowledge  they  would 
yet  defer ! 

An  occasional  reference  to  the  subject  in  after-years 
proved  that  his  affectionate  nature  was  also  a  strong 
motive  for  drawing  Mr.  Hunt  to  New  Orleans,  for  there 
he  knew  he  would  have  the  associations  and  ambitions 
of  his  brothers  to  help  him  on.  It  is  strange  that  he  ever 
doubted  his  prompt  success  at  the  bar  in  New  York,  yet 
was  willing  to  compete  at  once  with  such  men  as  those 
named,  in  New  Orleans. 

Without  further  delay,  in  the  year  1833  he  entered 
upon  the  practice  of  his  profession  in  his  new  home. 
Clients  soon  came  to  him,  and  with  his  indefatigable  stu- 
diousness  he  mastered  every  legal  question  submitted  to 

1  Mr.  Livingston  had  been  elected  United  States  senator  shortly 
before  Mr.  Hunt  went  to  New  Orleans.  In  1833  he  resigned  as 
Secretary  of  State,  and  accepted  the  mission  to  France. 


BIOGRAPHICAL  SKETCH.  xvii 

him.  As  he  once  wrote  himself,  "  difficulties  vanish  be- 
fore application  and  study."  His  habits  of  work  were 
peculiar  and  irregular.  He  often  left  his  bed  in  the 
middle  of  the  night,  after  an  hour's  sleep,  lit  the  lamp, 
and  resumed  his  labor.  With  unvarying  patience  he 
searched  for  the  foundation  of  all  reason  bearing  upon 
the  points  under  investigation,  and  was  not  content  until 
he  knew  all  there  was  to  learn  upon  his  topic.  Of  read- 
ing he  never  tired.  Mr.  Hunt's  professional  life  is  a 
marked  illustration  of  the  truism  that  a  lawyer's  know- 
ledge can  be  acquired  only  by  labor,  hard  and  untiring 
mental  work. 

To  enumerate  his  triumphs  at  the  bar  would  be  to  re- 
view the  most  important  lawsuits  tried  in  the  federal  and 
state  courts  of  Louisiana  for  forty  years,  yet  a  few  of  the 
causes  celebres  may  be  mentioned,  where  his  eloquence 
and  ability  will  long  be  remembered. 

The  first  substantial  fee  he  earned  he  put  into  a  box 
and  shipped  by  sea  to  his  mother  m  New  Haven.  Specie 
coin  being  the  principal  money  of  those  days,  a  box  con- 
taining three  thousand  dollars  must  have  been  of  some 
weight,  but  railroads  and  drafts  were  not  the  possible 
methods  to  remit  money  by,  as  they  now  are. 

One  of  Mr.  Hunt's  first  arguments  before  the  Supreme 
Court  of  the  State  was  for  the  appellant  in  the  cause  of 
Barelli  v.  Hagan,  argued  in  1839. 1 

He  succeeded  Edward  Livingston  in  the  celebrated 
Batture  litigation,2  in  which  Livingston  finally  overthrew 
Thomas  Jefferson. 

In  the  course  of  time  he  became  counsel  for  the  city 
of  New  Orleans,  and  gave  in  that  capacity  an  opinion 

1  13  La.  Rep.  p.  581. 

2  This  controversy  arose  in  1805,  when  Mr.  Livingston  instituted 
a  suit  for  John  Gravier  against  New  Orleans  to  quiet  title  to  certain 
lands  on  the  banks  of  the  Mississippi,  adjacent  to  New  Orleans. 

I 


xviii  BIOGRAPHICAL  SKETCH. 

that  the  city  was  liable  for  damages  done  by  the  mob 
which,  on  the  occasion  of  the  execution  of  the  American 
filibusters,1  broke  into  the  houses  of  Spanish  residents 
and  destroyed  their  property.  It  will  be  remembered 
that  Mr.  Webster,  as  Secretary  of  State,  took  afterwards 
a  like  position  for  the  government  of  the  United  States, 
and  made  reparation  to  Spain. 

Mr.  Hunt,  towards  the  close  of  his  career,  was  em- 
ployed by  the  government  of  the  United  States  as  special 
counsel  in  the  Wine  cases,  and  prosecuted  the  wine 
merchants  of  New  Orleans  for  violation  of  the  revenue 
laws.  And  it  was  his  argument  at  last,  in  the  celebrated 
Slaughter-House  cases,  which,  prevailing  as  it  did  in  the 
Supreme  Court  of  Louisiana,  was  accepted  by  the  Su- 
preme Court  of  the  United  States  (16  Wall.  p.  70), 
and  gave  to  the  fourteenth  amendment  of  the  Constitu- 
tion the  first  authoritative  interpretation.  The  court 
heard  the  case  twice,  and  gave  judgment  at  last,  by  the 
majority  of  a  single  vole,  in  favor  of  the  contention  Mr. 
Hunt  had  promoted  below  :  that  the  first  clause  of  the 
amendment  in  question  was  intended  primarily  to  confer 
citizenship  011  the  negro  race,  and  that  the  second  pro- 
tects, from  the  hostile  legislation  of  the  States,  the  privi- 
leges and  immunities  of  citizens  of  the  United  States  as 
distinguished  from  the  privileges  and  immunities  of  citi- 
zens of  the  States. 

This  memorable  decision  determined  that  the  existence 
of  the  States,  with  powers  for  domestic  purposes  and 
local  government,  including  the  regulation  of  civil  rights, 
the  rights  of  person  and  of  property,  is  essential  to  the 
perfect  working  of  our  complex  form  of  government. 

Curious  to  relate,  the  opposite  view  of  the  fourteenth 
amendment  was  contended  for  by  Ex-Justice  John  A. 

1  1851.     Schonler's  History  of  the  United  States. 


BIOGRAPHICAL   SKETCH.  xix 

Campbell,1  a  disciple  of  the  Calhoun  view  of  politics. 
Returning  to  New  Orleans  from  Washington,  Judge 
Campbell  furnished  a  striking  commentary  on  the  rela- 
tions of  counsel  to  public  affairs.  He  then  called  on 
Mr.  Hunt  and  congratulated  him.  He  went  on  to  say 
that  it  was  better  for  the  country  that  the  view  of  Mr. 
Hunt  had  prevailed  over  his  own. 

Before  the  nisi  prius  courts  Mr.  Hunt  acquired  a  large 
practice  because  of  his  extraordinary  success  in  jury  trials. 
The  strength  and  vigor  of  his  understanding,  the  compre- 
hensiveness of  his  studies  as  a  scholar  as  well  as  a  jurist, 
and  the  breadth  and  liberality  of  his  views,  the  clearness 
and  the  elevation  of  his  reflections,  and  the  logic  and 
accuracy  with  which  he  was  able  to  array  these,  and  then 
to  express  them,  and  the  excellence  of  his  declamation 
when  brought  to  bear,  as  it  habitually  was  with  him,  upon 
a  perfect  mastery  of  the  particular  case  under  discussion, 
enabled  him  to  attain  to  a  degree  of  true  eloquence  which 
is  not  often  to  be  met  with,  and  fo  command  the  admi- 
ration not  only  of  the  general  public,  but  of  the  most 
critical  listeners,  practiced  lawyers,  and  learned  judges. 

One  of  the  leaders  of  the  New  Orleans  bar  writes  of 
him  in  this  manner  :  "  In  addition  to  profound  studies  he 
brought  to  advocacy  in  criminal  cases  the  best  powers  I 
have  ever  seen  in  court.  His  examination  of  witnesses 
was  very  searching.  His  ability  to  lay  down  a  principle 
and  to  show  its  application  to  the  circumstances  in  hand 
was  most  striking.  His  whole  action  was  splendid ; 
courage  illuminated  the  entire  man  when  he  was  aroused 
and  enabled  him  to  give  every  protection  to  his  client. 
Nobody  dared  to  assail  him.  Above  all,  he  had  pathos  in 
speech  such  as  is  seldom  found.  He  would  wring  the 

1  John  A.  Campbell,  associate  justice  of  the  United  State  Supreme 
Court  from  1853  to  1861,  when  he  resigned,  and  practiced  law  in 
New  Orleans. 


xx  BIOGRAPHICAL   SKETCH. 

hearts  of  his  hearers,  and  move  all  their  tender  and  com- 
passionate feeling's." 

It  is  related  that  Etienne  Mazureau,  for  years  attor- 
ney-general of  Louisiana,  and  the  famous  lawyer  of  his 
day,  upon  hearing  one  of  Mr.  Hunt's  first  arguments  in 
New  Orleans,  said,  "That  is  good ;  "  and  at  a  later  period 
during  the  same  argument  he  again  said,  "  That  is  good  ;  " 
but  finally,  when  the  argument  was  concluded,  the  distin- 
guished advocate  exclaimed,  "  That  is  indeed  great !  " 

In  the  celebrated  case  of  the  State  of  Louisiana,  State 
of  Maryland  intervening,  v.  The  Executors  of  John 
McDouogh  and  the  City  of  New  Orleans,  Mr.  Hunt,  as 
counsel  for  the  city,  was  enabled  to  win  one  of  the  great 
triumphs  of  his  professional  career.  The  controversy  in 
the  Supreme  Court  of  Louisiana,  and  afterwards  in  the 
Supreme  Court  of  the  United  States  on  final  appeal, 
was  over  the  vast  legacies  established  by  the  holographic 
last  will  and  testament  of  McDonogh  in  favor  of  the 
cities  of  New  Orleans  and  Baltimore.  The  bequest  was 
of  the  residue  of  McDonogh's  estate,  wheresoever  situ- 
ate, unto  the  mayor,  aldermen,  and  inhabitants  of  New 
Orleans,  his  adopted  city,  and  the  mayor,  aldermen,  and 
inhabitants  of  Baltimore,  his  native  city,  in  equal  propor- 
tions of  one  half  each.  The  legacies  to  the  two  cities  were 
for  certain  purposes  of  public  utility,  and  especially  for 
the  establishment  and  support  of  free  schools  wherein  the 
poor,  and  the  poor  only,  of  both  sexes,  of  all  classes  and 
castes  of  color,  should  have  admittance  free  of  expense  for 
the  purpose  of  being  instructed  in  the  knowledge  of  the 
Lord,  and  in  reading,  writing,  arithmetic,  history,  geog- 
raphy, and  singing,  etc.,  etc.  The  States  of  Louisiana 
and  Maryland  instituted  suit  against  the  cities  of  New 
Orleans  mid  Baltimore,  to  avoid  the  legacies  in  favor  of 
the  latter.  The  collateral  heirs  of  McDonogh  also  at- 
tacked the  will,  it  being  contended  that  the  legacies  in 


BIOGRAPHICAL   SKETCH.  xxi 

question  were  substitutions  and  fidei  commissa,  which  are 
expressly  forbidden  by  law,  and  that  the  legacies  were 
made  upon  impossible  conditions  to  corporations  not  hav- 
ing1 the  capacity  to  receive,  and  were  consequently  null. 

This  case  was  argued  in  1853  before  the  Supreme 
Court  of  Louisiana,  where  was  filed  in  behalf  of  the  lega- 
tees an  elaborate  opinion  by  French  jurists  of  distinction, 
Delile,  Delaugle,  Giraud,  Duranton,  and  Marcade.  Mr. 
Hunt  added  to  his  reputation  by  an  argument  on  the  same 
side,  distinguished  by  a  profound  knowledge  of  the  civil 
law  of  France  and  of  Louisiana,  and  of  the  Roman  civil 
law  which  is  the  source  of  both. 

The  decision  of  the  Supreme  Court  of  Louisiana  was 
in  favor  of  McDonogh's  will  as  a  legacy  to  pious  uses,  of 
which  the  cities  were  recipients.  According  to  the  court, 
such  legacies  are  an  element  in  the  polity  of  municipal 
administration  in  all  countries  which  have  preserved  the 
features  and  jurisprudence  of  Roman  civilization. 

The  decision  applied  the  term  "  pious  "  to  the  encour- 
agement and  support  not  only  of  pious  and  charitable 
institutions,  but  of  those  in  aid  of  education  and  the  ad- 
vancement of  science  and  the  arts.  Under  the  benign 
doctrine  thus  established,  and  afterwards  confirmed  by 
the  Supreme  Court  of  the  United  States  l  as  embodying 
the  true  rules  of  jurisprudence,  great  numbers  of  public 
schools,  both  in  New  Orleans  and  Baltimore,  have  been 
established,  and  will  continue  for  all  time  to  dispense  the 
inestimable  blessings  of  knowledge  to  those  who  stand 
most  in  need  of  them. 

When  McDonogh  v.  Murdock  et  aL  was  argued,  Mr. 
Hunt  had  reached  national  reputation  as  a  lawyer,  but 
the  court  was,  notwithstanding,  hardly  prepared  for  the 
practiced  and  masterly  advocacy  with  which  he  urged  his 

i  McDonogh  r.  Howard.  The  case  is  reported  in  15  Howard, 
U.  S.  S.  C.  Reports,  3G9. 


xxn  BIOGRAPHICAL    SKETCH. 

powerful  argument,  and  by  general  admission  overbore 
Reverdy  Johnson,  then  the  leader  of  the  bar.  Justice 
Campbell,  who  gave  the  opinion,  always  insisted  that,  of 
all  the  arguments  he  had  ever  heard,  he  liked  this  one 
best.  It  was  his  habit  to  return  in  memory  to  the  occasion 
again  and  again,  and  to  rehearse  its  incidents  to  others. 

Another  of  the  important  suits  in  which  he  appeared 
was  tried  in  1865,  and  involved  the  genuineness  of  an 
asserted  codicil  to  the  will  of  John  McDonogh,  to  whom 
reference  has  been  made.  A  man  by  the  name  of  Moses 
Fox,  claiming  to  be  McDonogh's  nephew,  sought  to  have 
probated  the  codicil  wherein  McDonogh  bequeathed  him 
three  hundred  thousand  dollars.  The  cities  of  New  Or- 
leans and  Baltimore  set  up  that  the  codicil  was  a  forgery. 
The  trial  was  before  the  second  district  court  of  New 
Orleans,  and  attracted  great  attention.  Mr.  Hunt  repre- 
sented New  Orleans  ;  Christian  Koselius,  Baltimore  ;  and 
Pierre  Soulc,  the  petitioner  Fox.  The  arguments  were 
exhaustive,  and  upon  appeal  to  the  Supreme  Court  were 
characterized  by  Justice  Ilowell,  who  read  the  opinion  of 
the  court,  as  of  "  singular  ability."  Mr.  Koselius  adopted 
the  brief  of  Mr.  Hunt  as  his  own  argument  on  behalf  of 
the  city  of  Baltimore,  —  a  professional  compliment  which 
Mr.  Hunt  valued  with  the  appreciation  due  the  eminent 
lawyer  who  bestowed  it.  The  forgery  was  proved  against 
the  claim  of  Fox,  and  the  codicil  rejected.1 

Prominent  members  of  the  New  Orleans  bar,  who  have 
known  of  all  the  memorable  civil  trials  for  the  last  forty 
years,  refer  to  the  argument  of  Mr.  Hunt  in  the  case  of 
the  ship  Russia  as  one  of  the  most  eloquent  ever  heard  in 

1  The  question  of  expert  testimony  as  to  handwritings  was  a  most 
important  feature  of  the  ease.  Frenchmen  were  the  leading  wit- 
nesses on  both  sides,  and  the  value  of  their  knowledge  was  rigidly 
tested.  The  argument  of  Pierre  Sould  is  printed  in  full  in  the  report 
of  the  case  in  the  Louisiana  Reports,  but  other  briefs  are  recorded 
as  "not  found."  Tin:  opinion  of  the  court  is  reported  in  the  18th 
La.  Annual  Reports,  p.  419. 


BIOGRAPHICAL  SKETCH.  xxiii 

the  trial  courts  of  the  State.  The  Russia  had  foundered 
near  the  mouth  of  the  Mississippi.  Her  owners  sued  the 
insurance  companies  for  the  amounts  of  their  policies. 
They  defended  upon  the  ground  that  the  loss  of  the  ship 
was  occasioned  by  the  barratry  of  her  master. 

Sargent  S.  Prentiss,1  Christian  Roselius,  and  John 
Finney  represented  the  owners,  while  Benjamin,  Micou, 
Grymes,  and  Maybin  appeared  for  the  defense.  During 
the  progress  of  the  suit  Mr.  Prentiss  died,  and  it  was 
upon  the  second  trial  below  that  Mr.  Hunt  first  appeared 
in  his  stead.  The  trial  attracted  much  attention  on  ac- 
count of  the  issues  and  the  many  distinguished  lawyers 
engaged. 

Judge  Mortimer  M.  Reynolds  presided.  Colonel  John 
R.  Grymes  was  the  principal  advocate  for  the  defendants. 
He  was  then  in  his  prime,  and  is  described  as  "  a  model 
of  manly  grace,  dressed  like  a  dandy,  with  many  eyes 
turned  toward  him."  His  speech  was  greatly  admired. 

Speaking  of  the  conspirators,  on  whom  he  charged, 
Colonel  Grymes  reached  a  climax  :  "  Gentlemen  of  the 
jury,  since  the  sun  and  the  moon  and  the  stars  shone 
in  the  heavens,  there  never  stood  three  such  rascals  on 
a  quarter-deck  !  " 

Mr.  Hunt  closed  the  plaintiff's  case  in  an  address 
which  truly  deserves  to  be  remembered  as  splendid.  He 
forged  the  links  of  his  argument  so  as  to  make  up  a  chain 
that  could  not  be  broken.  He  fell  upon  his  adversaries 
with  a  power  of  sarcasm  which  made  them  writhe,  and 
under  which  they  could  hardly  sit.  His  argument  lasted 
for  hours,  and  resulted  in  a  verdict  for  the  owners. 

A  noteworthy  case,  in  which  it  happened  that  Mr.  Ben- 
jamin 2  and  Mr.  Hunt  met,  was  that  of  the  impeachment 

1  Sargent  S.  Prentiss  was  a  native  of  Maine.     He  was  known  as  a 

o 

great  orator  and  lawyer.  His  home  was  in  Mississippi  for  years,  but 
he  moved  to  New  Orleans  about  1845. 

2  Judah  P.  Benjamin,  United  States  senator  from  Louisiana  from 


xxiv  BIOGRAPHICAL  SKETCH. 

proceedings  in  the  state  Senate  of  Louisiana  of  a  judicial 
officer,  Judge  Benj.  C.  Elliott,  charged  in  the  year  1844 
with  wrongfully  issuing  naturalization  papers  to  foreigners, 
and  so  prostituting  to  Democratic  partisan  purposes  the 
powers  of  his  high  office.  Pierre  Soule  defended  the 
judge,  while  Benjamin  and  Hunt  appeared  against  him, 
as  managers  011  behalf  of  the  state  House  of  Representa- 
tives, of  which  body  Mr.  Hunt  was  a  leading  member. 
Benjamin  spoke  first,  and  with  great  applause.  Mr.  Hunt 
followed.  The  speeches  were  contrasted  by  Alexander 
Bullitt,  then  editor  of  the  "  New  Orleans  Picayune."  He 
greatly  praised  Mr.  Benjamin,  and  likened  his  argument 
to  a  beautiful  Corinthian  column  ;  but  the  argument  of 
Mr.  Hunt,  he  proceeded  to  say,  reminded  him  of  a  noble 
and  complete  edifice,  in  which  the  column  was  merely  a 
single  part. 

The  report  recommending  the  removal  of  Judge  Elliott 
from  the  office  of  judge  of  the  city  court  of  Lafayette 
was  signed  by  Mr.  Hunt  as  chairman.  It  was  a  most 
severe  arraignment,  and  was  prefaced  in  the  following 
impressive  language :  — 

"  Our  liberties  depend  upon  the  pure  exercise  of  the 
right  of  suffrage.  If  we  suffer  that  right  to  be  abused 
and  polluted,  to  be  extended  by  fraud  and  corruption,  or 
by  carelessness  and  loose  practices,  to  those  not  entitled 
to  it  by  the  Constitution  and  laws  of  our  State,  our  gov- 
ernment will  at  once  degenerate  from  its  high  republican 
character  and  sink  into  a  tyranny. 

"  Hence  it  becomes  us  to  guard  with  the  greatest  vigi- 
lance against  every  encroachment  on  the  right  of  suffrage, 
and  to  discountenance  and  reprobate,  on  the  part  of  those 
in  \vhom  the  administration  of  the  naturalization  laws  is 
confined,  any  remissness  or  failure  in  the  discharge  of 
their  duties. 

1852  to  18G1,  when  he  withdrew.  lie  became  a  leader  at  the  bar  of 
Ensrhiml  after  the  war. 


BIOGRAPHICAL   SKETCH.  xxv 

"  The  right  of  suffrage  is  the  very  life-blood  of  liberty. 
It  is  inseparable  from  the  political  equality  and  indepen- 
dence of  man.  It  is  essential  to  citizenship,  and  its  honest 
exercise  is  alike  the  safety  and  glory  of  popular  rule.  It 
should,  then,  be  maintained  in  its  highest  purity,  and  es- 
pecially by  its  elected  guardians,  the  officers  of  the  law." 

The  Democratic  members  of  the  legislature  presented  a 
minority  report ;  and  in  April,  1844,  the  court  of  im- 
peachment assembled  in  New  Orleans.  The  arguments 
extended  over  several  days,  and  the  result  of  the  impeach- 
ment was  vividly  described  in  the  following  language, 
quoted  from  the  account  of  Henry  C.  Castellanos,  Esq.,  a 
member  of  the  New  Orleans  bar  :  — 

"  The  dismissal  of  this  disgraced  and  recreant  func- 
tionary by  the  Senate  of  this  State  —  a  dismissal  brought 
about  by  the  concurrent  action  of  Whigs  and  Democrats 
alike  —  awakened  among  all  classes  of  citizens  feelings 
of  unmixed  gratification.  The  sturdy  independence  of 
several  Democratic  senators  was  highly  commended. 
Although  it  was  nearly  midnight  when  the  result  was 
first  announced,  still  there  were  thousands  on  the  qui  vive 
awaiting  the  event.  The  news  spread  like  wildfire.  The 
St.  Louis  rotunda,  Hewlett's  Exchange,  and  Banks'  Ar- 
cade disgorged  their  hundreds  of  habitues,  who,  all  wend- 
ing their  course  toward  the  State  House,  soon  filled  up 
that  part  of  Canal  Street.  An  impromptu  demonstration 
was  proposed,  and  at  once  got  up.  The  cannon  of  the 
Washington  Artillery  were  drawn  from  their  armory,  and 
a  salute  of  twelve  guns  fired.  Then  forming  into  a  pro- 
cession, with  blazing  pine  torches  and  a  band  of  music  at 
their  head,  the  swelling  crowd  proceeded  to  serenade  the 
House  managers,  —  Messrs.  Hunt,  Benjamin,  and  Wads- 
worth,  —  as  a  compliment  for  their  services  in  the  cause 
of  political  honesty.  And  all  this  within  the  compass  of 
one  hour." 


xxvi  BIOGRAPHICAL  SKETCH. 

The  Shepherd  will  case  was  another  of  the  great  cases 
wherein  Mr.  Hunt  made  an  argument  of  such  merit  as  to 
require  some  mention. 

The  dispute  was  over  the  distribution  of  a  large  estate 
left  by  James  H.  Shepherd,  who  died  in  1837. 

Mr.  Hunt,  Judge  Campbell,  and  Mr.  Roselius  repre- 
sented the  heirs  of  a  brother  of  J.  H.  Shepherd,  who 
sued  to  recover  shares  of  the  property  belonging  to  them 
by  the  will. 

Mr.  Hunt's  brief,  covering  one  hundred  and  fifty 
pages,  shows  research  into  the  French,  Roman,  and 
English  laws  concerning  wills,  and  in  a  style  conspicuous 
for  its  purity  and  solidity  presented  the  law  and  facts  as 
they  were  upheld  by  the  court,  and  resulted  in  a  fortune 
for  his  grateful  clients. 

He  must  have  been  satisfied  with  his  own  argument, 
for  he  concluded  it  in  these  words  :  — 

"  This  argument  for  the  defense  is  here  closed.  It  has 
been  drawn  from  the  purest  fountains  of  jiistice  and  of 
law  :  the  writings  of  the  ancient  sa^'es  and  most  learned 

o  o 

doctors  of  the  civil  law,  the  decisions  of  courts  of  the 
highest  character,  and  the  comments  and  dissertations  of 
the  most  illustrious  jurists  of  the  present  day.  It  has 
not  been  confined  to  a  mere  exposition  of  the  textual  pro- 
visions of  law,  but  has  been  extended,  after  the  fashion  of 
those  by  whose  authority  it  is  supported,  into  the  investi- 
gations of  principles,  the  search  after  the  natural  truths 
upon  which  the  private  relations  of  men,  their  contracts 
and  rights  of  family  and  property  repose,  in  the  hopes  to 
impart  something  of  the  charm  of  philosophy  to  that 
which  otherwise  would  have  been  comparatively  dry  and 
contracted.  For  it  is  this  association  of  philosophy  and 
law  that  renders  jurisprudence  a  science,  and  leads  to  the 
contemplation  of  the  high  and  fixed  rules  of  wisdom,  jus- 
tice, and  beneficence,  from  which  our  dearest  rights,  the 
purest  links  of  law's  golden  chain,  are  sustained. 


BIOGRAPHICAL  SKETCH.  xxvii 

"  It  is  for  you,  judges,  to  pronounce  upon  the  plaintiff's 
attempt,  without  legal  proof  and  against  moral  evidence, 
to  blast  the  memory  of  a  good  man  who  descended  into 
the  tomb  with  public  veneration,  to  carry  dishonor  and 
shame  into  his  daughter's  family,  and  to  despoil  her  of 
property  held  under  a  just  judgment  of  court  and  sancti- 
fied by  a  possession  of  thirty  years.  From  her  distant 
home  in  Massachusetts,  Ellen  Brooks,  the  daughter  of 
Rezin  D.  Shepherd,  calls  upon  you  to  protect  her  from  the 
speculations  of  cupidity,  and  her  father,  whose  reputation 
is  dearer  to  her  than  her  own  life,  from  the  aspersions 
of  calumny." 

The  great  success  which  he  had  achieved  in  his  pro- 
fession was  the  reward  of  almost  uninterrupted  study. 
Politics  did  not  disturb  Mr.  Hunt  at  all  seriously,  although 
his  position  at  the  bar  placed  him  where  he  met  the  dis- 
tinguished public  men  of  the  South.  A  Whig  of  a  radi- 
cal type,  he  had  become  well  acquainted  with  Mr.  Clay, 
who  frequently  visited  New  Orleans  in  the  years  preced- 
ing the  campaign  of  1844.  Mr.  Hunt  ardently  admired 
Mr.  Clay,  and  belonged  to  the  large  number  of  old 
Whigs  who  never  ceased  to  regret  his  defeat  for  the  pres- 
idency. He  spoke  often  for  the  Whig  cause,  and  joined 
in  the  spontaneous  enthusiasm  which  the  name  of  Mr. 
Clay  everywhere  aroused.  At  Mr.  Clay's  request  Mr. 
Hunt  visited  him  at  Ashland,  and  their  relations  became 
intimate.  Mr.  Clay  urged  at  one  time  his  appointment 
as  Attorney-General  of  the  United  States.1 

Not  long  after  Clay's  death,  a  snuff-box  which  had 
once  belonged  to  Peter  the  Great  was  presented  to  Mr. 
Hunt  by  Dr.  Mercer,  of  New  Orleans,  to  whom  Mr.  Clay 
had  bequeathed  it.  Dr.  Mercer  gave  it  to  Mr.  Hunt, 
"knowing,"  he  wrote,  "of  the  high  regard  that  Mr.  Clay 
bore  for  you  always." 

1  Probably  when  Mr.  Fillmore  became  President. 


xxvin  BIOGRAPHICAL   SKETCH. 

Louisiana  was  noted  for  the  intensity  of  "  Whiggism." 
In  no  other  State  were  the  leaders  of  that  political  party 
more  active  or  sanguine.  Even  in  1851,  when  a  total 
dissolution  of  the  organization  was  inevitable,  the  Louisi- 
ana Whigs  entered  the  fall  campaign  with  vigor  and  con- 
fidence. Randell  Hunt  was  on  the  stump,  working  ear- 
nestly for  the  Union  and  a  new  state  Constitution.  Pierre 
Soule,  then  United  States  senator,  had  made  a  speech 
upon  the  admission  of  California  into  the  Union,  express- 
ing opinions  sustaining  the  right  of  a  State  to  demand 
allegiance  to  it  alone.  The  course  of  Senator  Soule  gave 
Mr.  Hunt  full  opportunity  to  reply  to  the  senator's  views, 
and  at  the  same  time  to  reiterate  his  own  well-known 
Union  sentiments.  This  he  did  at  the  close  of  a  brilliant 
speech,  devoted  principally  to  the  necessity  for  a  new 
state  Constitution.  Among  other  things  concerning  the 
Union  Mr.  Hunt  said  :  — 

"  Mr.  Soule  declares  that  the  right  to  secede  was  fully 
and  most  emphatically  implied  in  the  Articles  of  Confed- 
eration, and  is  not  surrendered  by  the  Constitution.  The 
Articles  of  Confederation,  upon  their  very  face,  declare 
that  they  are  '  Articles  of  Confederation  and  Perpetual 
Union.'  And  in  the  preamble  to  the  Constitution  of  the 
United  States  it  is  declared  that  '  the  people  of  the  United 
States,  in  order  to  form  a,  more  perfect  Union,  do  ordain 
and  establish  the  Constitution.' 

"  Mr.  Soule  declares  that  a  State,  in  seceding,  would 
only  '  exert  her  undoubted  privilege  as  one  of  the  sov- 
ereign confederates.'  This  declaration  is  based  upon  the 
notion  that  the  Constitution  of  the  United  States  is  a 
mere  league  between  sovereign  States  who  have  preserved 
their  whole  sovereignty.  But  the  Constitution  of  the 
United  States  forms  a  government,  and  not  a  league.  It 
operates  directly  upon  the  people,  individually,  and  not 
upon  the  States.  Each  State  lias  surrendered  many  es- 


BIOGRAPHICAL   SKETCH.  xxix 

sential  portions  of  its  sovereignty  fo?  the  purpose  of  con- 
stituting, with  the  other  States,  a  nation.  To  secede, 
then,  is  not  to  break  a  league,  but,  in  the  language  of 
General  Jackson,  to  destroy  the  unity  of  a  nation. 

"  Mr.  Soule  declares,  substantially,  that  his  allegiance  is 
due  to  the  State  alone,  and  not  to  the  United  States.  '  Does 
not  each  of  us,'  says  he  in  his  speech,  '  possess  —  do  we 
not  exert  whenever  we  please  —  the  right  of  changing  our 
allegiance  by  passing  from  one  State  to  the  other,  or  to 
a  foreign  state  ?  Who  denies  it  ?  Who  doubts  it  ?  ' 

"  Does  Mr.  Soule  suppose  that  his  allegiance  to  the 
United  States  would  be  changed  by  his  passing  from 
Louisiana  to  South  Carolina  or  to  Massachusetts  ?  Has 
he  not  taken  an  oath  of  allegiance  to  the  United  States  ? 
Has  he  not  sworn  to  support  the  Constitution  of  the 
United  States  ?  Does  not  that  Constitution  provide  that 
the  Constitution  and  the  laws  of  the  United  States  shall 
be  the  supreme  law  of  the  land  ;  and  does  it  not  also  pro- 
vide that  the  members  of  the  several  state  legislatures, 
and  all  executive  and  judicial  officers  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath  to 
support  the  Constitution  ?  Does  it  not  contain  a  clause 
expressly  conveying  a  right  to  punish  treason  against  the 
United  States  :  and  is  not  treason  the  highest  breach  of 
allegiance  ? 

"  How  can  a  citizen  of  the  United  States  say,  then,  that 
he  owes  no  allegiance  to  the  United  States  ;  and  how  can 
he  assert  that  his  allegiance  is  changed  by  '  passing  from 
one  State  to  the  other,  or  to  a  foreign  state '  ? 

"  I  can  hardly  imagine  how  even  a  native  of  a  State  who 
has  not  reflected  seriously  upon  the  true  character  and 
complicated  structure  of  our  government,  and  who  has 
been  educated  with  false  feeling  of  state  pride,  and  been 
taught  the  extreme  doctrines  of  state  rights  in  the  school 
of  abstractionists  and  metaphysicians,  can  so  far  lose  sight 


xxx  BIOGRAPHICAL   SKETCH. 

of  the  operations  of  the  national  government  as  for  a 
moment  to  believe  that  he  owes  allegiance  to  his  native 
State  alone,  and  that  he  owes  no  allegiance  to  the  United 
States.  But  I  confess  myself  entirely  at  a  loss  to  under- 
stand how  an  adopted  citizen,  who  may  be  naturalized  in  a 
Territory  or  in  the  District  of  Columbia ;  who  may  reside 
during  his  probationary  term  in  one  State  and  may  be 
admitted  in  another ;  whose  right  of  citizenship  has  been 
conferred  upon  him  by  the  United  States,  and  not  by  the 
State  in  which  he  may  chance  to  live ;  and  who,  at  the 
time  of  his  application  to  be  admitted,  must  have  re- 
nounced and  abjured  all  allegiance  to  the  prince,  state, 
or  sovereignty  whereof  he  was  before  a  citizen  or  subject, 
and  sworn  to  support  the  Constitution  of  the  United 
States,  —  I  confess  myself  entirely  at  a  loss  to  understand 
how  such  a  person  can  believe  his  allegiance  is  not  due  to 
the  United  States. 

•'  These  notions  and  these  doctrines  of  Mr.  Soule,  if  car- 
ried into  practice,  would  destroy  our  national  character 
as  Americans,  and  put  an  end  to  the  Union. 

"  Mr.  Soule  says  '  he  is  not  for  breaking  this  confeder- 
acy ;  he  is  not  for  advising  the  State  to  join  any  secession 
movement  which  may  be  made  by  other  States.'  Oh  no ! 
He  only  argues  the  right  in  the  abstract.  He  would  have 
the  people  still  endure.  But  this  is  a  dangerous  philos- 
ophy. Practically  speaking,  there  is  but  one  step  from 
the  conviction  as  to  a  right  and  its  enforcement,  from  the 
suffering  of  a  wrong  to  its  manly  redress.  Ours  is  a 
government  of  sentiment  and  affection,  and  if  the  feelings 
of  the  people  are  once  alienated  from  it,  the  government 
from  that  moment  is  at  an  end. 

"What  is  it  that  the  advocates  of  secession  desire  ? 
What  would  they  have  who  seek  to  destroy  our  Union, 

»/  •> 

and  to  erect  a  State  into  an  independent  nation  ?  .   .   . 
"  But  what  would  be  our  condition  if  we  were  divided 


BIOGRAPHICAL   SKETCH.  xxxi 

into  rival  and  hostile  States?  I  turn  with  horror  from 
the  contemplation  of  the  misery  which  would  await  us  at 
home,  and  can  see  nothing  but  degradation  abroad.  Sup- 
pose Louisiana  were  to  secede  from  the  Union  ;  suppose 
one  of  her  sons  in  a  foreign  land  were  to  be  threatened 
by  the  minions  of  a  tyrannical  government  with  wrong 
and  injury,  —  what  more  ridiculous  and  insignificant  an 
object  can  there  be  imagined  than  such  a  person  claiming 
protection  in  the  name  of  the  sovereign  nation  of  Loui- 
siana, and  pointing  to  a  flag  with  a  pelican  on  it  as  the 
emblem  of  his  country  ?  " 

When  the  old  Whig  party  totally  dissolved,  Randell 
Hunt,  like  so  many  others  in  the  South,  united  with  the 
Americans  or  Know-Nothings.  He  was  the  American 
candidate  for  attorney-general  of  his  State  in  1855,  and  X 
made  a  very  active  campaign.  The  yellow  fever  was  * '  J 
violent  in  many  towns  that  year,  and  traveling  facilities 
were  inadequate,  so  that  between  the  two  discomforts  his 
tour  of  the  State  was  not  very  pleasant.  Politically  speak- 
ing, however,  it  was  a  success,  and  he  wrote  of  a  large 
meeting  he  had  addressed  at  Richmond  in  September, 
1855,  where  great  enthusiasm  prevailed.  Mr.  Hunt's 
meetings  were  crowded  at  all  points,  and  every  form  of 
compliment  was  showered  upon  him.  He  went  into  Mis- 
sissippi, too,  where  the  mayor  of  the  city  of  Natchez  and 
other  dignitaries  extended  him  what  he  termed  "  an  ova- 
tion." The  Democrats  were  equally  active  ;  "  the  staple 
of  their  addresses,"  wrote  Mr.  Hunt,  "  being  a  vituper- 
ation and  denunciation  of  the  American  party,  mingled 
with  praises  of  the  Democracy  and  of  the  administra- 
tion." 

At  Monroe,  in  Ouachita,  he  held  a  joint  debate  with 
Judge  Richardson.  He  was  heard  with  apparent  rap- 
ture. Every  patriotic  sentiment  was  applauded  to  the 
echo,  and  even  the  dullest  parts  of  his  argument  seemed 


xxxn  BIOGRAPHICAL   SKETCH. 

to  excite  the  intensest  interest.     Judo-e   Richardson  an- 

o 

swered  him,  and  Mr.  Hunt  rejoined.  The  judge  was 
very  uneasy  during  the  rejoinder.  He  turned  and 
twisted  himself  about  in  his  chair,  rubbed  his  face, 
stretched  his  legs,  and  at  length  rose  and  incontinently 
fled  from  the  contest.  The  boys  laughed  at  him  as  he 
retired,  and  a  hearty  and  vociferous  shout  of  victory,  with 
three  cheers  for  Hunt,  made  the  welkin  ring  and  ended 
the  discussion.  The  American  party,  however,  was  de- 
feated, and  Mr.  Hunt  went  down  with  it. 

The  question  of  a  convention  to  revise  the  state  Con- 
stitution of  1845  became  a  political  issue  during  the 
campaign  of  1851,  —  the  Whigs  favoring,  the  Democrats 
opposing  revision. 

Mr.  Hunt  argued  for  the  Whigs  that  the  Constitution, 
with  its  restrictions  and  prohibitions,  had  fettered  the 
enterprise  and  industry  of  the  people,  and  caused  capital 
to  seek  a  more  natural  and  freer  home  elsewhere.  He 
contended  that  railroads  and  other  improvements  needed 
stimulating  by  enabling  legislation ;  that  the  judicial 
system  was  defective,  and  the  executive  department  too 
much  restricted. 

At  the  period  in  question  Mr.  Hunt  was  iindoubtedly 
the  most  widely  admired  public  speaker  in  the  State  of 
Louisiana.  He  prepared  and  delivered  from  the  gallery 
of  Stickney's  Amphitheatre,  in  the  city  of  New  Orleans, 
an  elaborate  address  in  favor  of  a  new  Constitution,  which 
carried  conviction  not  only  to  his  immediate  listeners,  but 
to  the  voting  population  throughout  the  State.  Ilis  part 
in  the  discussion  of  the  issues  before  the  public  had  the 
effect  of  making  an  epoch  in  local  history.  He  rolled 
up  the  Constitution  of  1845,  and  put  it  aside  like  an  old 
and  useless  parchment.  That  Constitution  was  now  pro- 
nounced to  be  unsuitcd  to  the  spirit  of  the  times  and  to 
the  growing  requirements  of  a  modern  American  com- 
monwealth. 


BIOGRAPHICAL  SKETCH.  xxxiii 

The  Whigs  carried  the  election.  Mr.  Hunt  was  elected 
a  member  of  the  convention,  and  readily  became  leader 
of  the  body,  taking  a  chief  part  in  its  important  deliber- 
ations, and  moving,  when  it  closed  its  session,  the  final 
adjournment. 

He  was  the  leading  member  of  the  Judiciary  Commit- 
tee. In  the  list  of  his  colleagues  were  such  men  as 
Christian  Roselius,  Judah  P.  Benjamin,  Ex-Governor 
Roman,  Edward  A.  Bradford,1  Duncan  F.  Kenner,  and 
others,  who  contributed  to  the  lasting  honor  and  fame  of 
Louisiana,  and  who  helped  to  make  up  perhaps  the  ablest 
deliberative  body  that  has  ever  assembled  in  the  State. 
The  Constitution  adopted  by  the  convention  became  the 
new  law  of  the  State,  and  remained  so  until  1864. 

It  being  part  of  the  history  of  the  State  that  one  of  the 
causes  leading  to  a  change  of  Constitution  was  the  popu- 
lar wish  to  disembarrass  legislation  from  some  of  the 
trammels  of  the  Constitution  of  1845,  and  to  enable  the 
State  to  grant  aid  to  works  of  internal  improvements, 

1  Mr.  Bradford  met  with  cruel  disaster.  He  was,  towards  the 
close  of  the  administration  of  President  Fillmore,  appointed  associate  ' 
justice  of  the  Supreme  Court  of  the  United  States,  in  the  place 
which  Justice  Campbell  was  afterwards  called  to  fill.  On  receiving 
the  appointment  Mr.  Bradford  left  Xew  Orleans  and  repaired  to 
Washington,  where  Congress  was  in  session.  It  happened  that  he 
was  known  (he  was  a  graduate  from  Yale  College)  to  gentlemen 
from  the  North.  Some  of  these  had  seen  his  nomination  with  joy, 
and  rose  in  the  Senate  to  testify  to  the  excellence  of  his  character 
and  of  his  attainments.  This,  happening  in  the  height  of  the  sla- 
very agitation,  ruined  Mr.  Bradford.  An  element  from  the  South 
took  alarm.  They  resented  the  praise  that  had  been  spoken.  They 
suspected  the  sincerity  of  it,  simply  because  of  the  quarter  from 
which  it  came.  They  then  appealed  to  party  and  to  sectional  pas- 
sions, and  the  rejection  of  Mr.  Bradford's  name  was  the  result.  At 
a  dinner-party  given  to  Hon.  Randall  Gibson  by  Judah  P.  Benjamin, 
in  Paris,  Mr.  Benjamin  said  to  Senator  Gibson  that  Mr.  Bradford  was 
the  greatest  lawyer  he  had  ever  known. 


xxxiv  BIOGRAPHICAL  SKETCH. 

that  subject  naturally  engrossed  the  legislative  mind, 
and  resulted  in  the  adoption  of  the  act  of  March  12, 
1852,  providing  for  the  subscription,  by  the  parishes  and 
municipal  corporations  of  the  State  of  Louisiana,  to  the 
stock  of  corporations  undertaking  works  of  internal  im- 
provements, and  for  the  payment  and  disposal  of  the 
stock  so  subscribed.  As  the  conspicuous  champion  of 
the  Constitution  of  1852,  as  well  as  the  most  eminent 
constitutional  jurist  at  the  bar,  for  such  undoubtedly  had 
the  position  of  Mr.  Hunt  become,  he  was  employed,  at 
large  retainers,  to  defend  the  constitutionality  of  the  act 
of  March  12,  just  referred  to.  The  judgment  of  the 
Supreme  Court  of  Louisiana,  following  the  views  urged 
by  him  on  argument,  in  police  jury,  for  the  use  of  the 
New  Orleans,  Opelousas.  and  Great  Western  K.  R.  Co. 
v.  Succession  of  McDonogh,  8  La.  An.  341,  and  in  City 
of  New  Orleans  v.  Mrs.  Graihle,  9  La.  An.  561,  proceeded 
to  secure  the  building  of  the  Great  Western  Railroad. 
Down  to  this  time  there  were  only  eighty-one  miles  of 
railroad  in  the  State  of  Louisiana.  The  adjudications 
here  cited  fixed  the  construction  of  two  great  lines  of 
communication,  one  of  which  has  grown  to  be  part  of  the 
Southern  Pacific  Railway  across  the  continent,  and  the 
other  has  become  an  important  link  in  the  Illinois  Cen- 
tral Railroad.  The  territory  of  Louisiana  was  not  only 
brought  in  this  way  into  close  intercourse  with  the  other 
parts  of  the  country,  and  a  new  commerce  established 
for  it,  but  it  was  also  bound  to  the  national  destiny,  and 
made  irrevocably  part  of  it. 

Mr.  Hunt  was  now  at  his  best,  and  addressed  himself 
to  the  discussion  of  his  great  cases  with  astonishing  full- 
ness of  research,  and  with  great  breadth  and  liberality, 
as  well  as  persuasive  powers,  in  professional  debate.  It 
was  on  the  occasion  of  the  delivery  of  the  argument  for 
the  railroad  that  Mr.  Benjamin,  then  one  of  the  leaders 


BIOGRAPHICAL   SKETCH.  xxxv 

of  the  bar  of  New  Orleans,  but  afterwards  the  acknow- 
ledged head  of  the  bar  of  London,  paid  Mr.  Hunt's  ad- 
vocacy that  tribute  which  is  so  often  repeated  in  New 
Orleans.  Mr.  Benjamin  returned  from  court  in  com- 
pany with  Thomas  L.  Bayne,  Esq.,  a  well-known  mem- 
ber of  the  bar,  who  had  studied  law  in  Mr.  Benjamin's 
office.  The  two  gentlemen  conversed  as  they  walked. 
Mr.  Benjamin  had  just  left  the  Supreme  Court,  where 
Mr.  Hunt  had  been  speaking.  "  Splendid  !  "  he  ex- 
claimed. "  Did  you  hear  Hunt  ?  Shall  I  ever  be  able 
to  make  a  speech  like  that?"  A  measure  of  praise  no 
less  than  this  was  afterwards  rendered  Mr.  Hunt  by 
Judge  John  A.  Campbell,  who,  retired  from  his  high  office 
of  associate  justice  of  the  Supreme  Court  of  the  United 
States,  came  himself  in  the  course  of  time  to  stand  at  the 
head  of  the  legal  profession  in  the  city  of  New  Orleans. 
Judge  Campbell,  when  Mr.  Hunt  was  elected  by  the 
legislature  of  the  State  of  Louisiana  to  be  senator  in 
Congress,  declared  that  he  was  the  strongest  lawyer  who 
had  ever  argued  before  him. 

Any  sketch  of  Randell  Hunt  would  fall  short  of  ren- 
dering him  justice  which  might  leave  it  to  be  understood 
that  his  professional  engagements  included  only  great 
cases,  such  as  have  been  mentioned.  As  he  advanced  in 
years  his  experience  grew,  and  embraced  many  of  the 
complex  and  important  relations  of  a  civilized  society.  It 
became  his  practice  to  argue  cases  such  as  arose  in  the  city 
of  New  Orleans  in  exciting  times  of  close  party  contests, 
involving  titles  to  offices  of  profit  and  emolument  and 
of  influence,  like  those,  for  example,  of  district  attorney 
for  the  parish  of  Orleans,  clerk  of  the  great  Common- 
wealth Court  of  the  town,  and  commissioners  of  election. 
His  skill  in  the  criminal  practice  and  deep  knowledge  of 
the  criminal  law,  and  his  fearless  character  and  eloquent 
voice,  attracted  to  him  also  numbers  of  criminal  cases, 


xxxvi  BIOGRAPHICAL   SKETCH. 

and  enabled  him  to  sustain  the  reputation  of  being  first 
at  the  criminal  bar.  Life  in  New  Orleans  was  full  of 
stirring  incidents.  Parties  were  quite  evenly  divided. 
Personal  encounters  were  common,  and  led  often  to  mor- 
tal consequences.  Mr.  Hunt,  whose  standard  of  profes- 
sional duty  was  the  highest,  at  some  personal  risk  de- 
fended Wadsworth,  and  had  him  acquitted.  Wadsworth 
had  been  warned  that  one  Carson  would  take  his  life. 
Wadsworth  met  Carson  and  shot  him  dead  in  the  great 
rotunda  of  the  St.  Louis  Hotel  in  New  Orleans.  Mr. 
Hunt  also  defended  Pope  Adams  on  a  charge  of  murder, 
making  on  his  behalf  an  appeal  for  mercy  such  as  only 
the  most  consummate  skill  and  oratory  could  produce. 
Adams  was  convicted  notwithstanding.  Sentenced  to 
death,  he  ended  his  life  in  prison  by  taking  poison. 

Mr.  Hunt  successfully  defended  Garland,  city  treasurer 
of  New  Orleans,  on  a  charge  of  robbing  the  city  trea- 
sury. He  attacked  the  indictment  and  overthrew  it.  He 
also  defended  with  success — Benjamin  being  appointed 
•with  him — Kendall,  postmaster  at  New  Orleans,  who  was 
charged  with  rifling  the  mails.  The  signal  forensic  tal- 
ents displayed  by  Kendall's  counsel  secured  his  acquittal, 
and  added  fresh  lustre  to  their  high  reputation. 

The  first  candidacy  of  Mr.  Hunt  for  the  LTnited  States 
Senate  grew  naturally  out  of  the  character  which  he  had 
earned  by  his  service  in  public  affairs,  as  well  as  out  of 
his  eminence  as  a  lawyer.  The  contest  was  between 
Duncan  F.  Kcnner  (who  shortly  afterwards  became  presi- 
dent of  the  Constitutional  Convention  of  1852),  Mr.  Ben- 
jamin, and  Mr.  Hunt.  The  name  of  Mr.  Hunt  rallied  to 
his  support  an  influential  consanguinity  of  distinguished 
merit  and  the  best  citizens,  who  saw  in  him  the  represen- 
tative of  sound  constitutional  opinions  and  of  consistent 
and  devoted  Unionism.  The  choice  of  the  legislature 
fell  at  last  upon  Benjamin.  lie  was  at  the  end  of  his 


BIOGRAPHICAL   SKETCH.  xxxvii 

term  reflected,  under  circumstances  not  very  gratifying  to 
him,  by  a  bare  majority.  It  was  not  long  before  he  left 
his  place  and  plunged  into  the  vortex  of  the  Rebellion. 
It  was  reserved  to  Mr.  Hunt  to  receive  the  honor  of  an 
election  when  the  war  which  he  had  opposed  was  brought 
to  a  close. 

We  must  turn  from  the  narrative  of  his  public  life  to 
his  own  affairs  for  a  moment.  Although  he  had  now 
reached  his  forty-eighth  year  he  was  still  a  bachelor. 
Matters  before  the  Supreme  Court  at  Washington  took 
him  to  that  city  in  the  spring  of  1854.  While  there, 
Mr.  Hunt  became  engaged  to  Miss  Ruhamah  Ludlow,  a 
niece  of  Mrs.  McLean,  the  wife  of  Justice  McLean,  of 
the  Supreme  Court  of  the  United  States.  He  tele- 
graphed to  New  Orleans  that  he  had  "  won  two  suits, 
—  one  in  the  Supreme  Court  and  one  in  the  Court  of 
Love."  Miss  Ludlow  was  quite  celebrated  for  her  beauty 
and  accomplishments.  They  were  married  at  Cincinnati 
on  the  following  July  12.  Mrs.  Hunt's  grandfather  was 
Colonel  Israel  Ludlow,  one  of  the  founders  and  proprie- 
tors of  Cincinnati,  and  her  ancestors  were  officers  in  the 
war  of  the  American  Revolution.1  She  was  ever  a  devoted 
and  loving  wife.  They  had  no  children. 

Resuming  our  glance  at  the  political  kaleidoscope,  it 
would  be  out  of  place  in  this  brief  memoir  to  more  than 
mention  the  downfall  of  the  Know-Nothings.  They 
never  had  any  formidable  strength,  and  the  impending 
moral  issue  of  slavery  or  no  slavery  was  of  so  much  more 
universal  interest  than  any  amendment  of  our  natu- 

1  Benjamin  Chambers  was  one  of  the  early  settlers  (about  1726) 
in  Cumberland  County,  Pennsylvania.  His  son  was  in  the  Revolu- 
tionary War. 

Cornelius  Ludlow  was  also  an  officer  in  the  Revolution.  Two  of 
Mrs.  Hunt's  brothers,  Israel  and  Benj.  C.,  were  gallant  officers  on 
the  Union  side  during  the  war  of  1861-05.  Chief- Justice  Salmon 
P.  Chase  married  a  sister  of  Mrs.  Hunt. 


xxxviii  BIOGRAPHICAL   SKETCH. 

ralization  and  immigration  statutes  that  it  is  surprising 
that  Know  -Nothingism'  had  any  substantial  following. 
The  Southern  Whigs  seemed  to  have  been  considerably 
tossed  about  between  the  years  185G  and  1860.  Mr. 
Lincoln,  as  the  leader  of  the  Republican  party,  was  too 
radical,  they  thought,  in  his  abolition  tendencies.  On  the 
other  hand,  they  could  not  tolerate  Douglas,  who  repre- 
sented all  that  was  to  them  pernicious  and  dangerous. 
They  were  violently  opposed  to  Breckinridge,  who  was 
purely  the  candidate  of  a  section  of  the  Union  rather 
than  of  the  Union  as  a  whole. 

During  the  summer  of  1860  a  national  convention  of 
delegates,  largely  comprised  of  old  Whigs,  Americans, 
and  Know-Nothings,  in  the  North  and  South,  met  at 
Baltimore,  and,  under  the  name  of  Constitutional  Union- 
ists, nominated  John  Bell,  of  Tennessee,  for  President,  and 
Edward  Everett,  of  Massachusetts,  for  Vice-President. 
The  platform  of  the  party  may  be  summarized  by  its 
adherence  to  the  Union.  An  approved  historian  declares 
that  the  new  party  were  in  favor  of  the  Union,  but  just 
how  to  execute  a  plan  for  its  preservation  was  not  clear 
to  them. 

Blaine,  in  his  "  Twenty  Years  of  Congress,"  thus  mits 
it :  u  Mr.  Bell  desired  to  avoid  the  one  question  that  was 
in  the  popular  mind,  and  to  lead  the  people  away  from 
every  issue  except  the  abstract  one  of  preserving  the 
Union.  By  what  means  the  Union  could  be  preserved 
against  the  efforts  of  the  Southern  secessionists  Mr. 
Bell's  party  did  not  explain.  The  popular  apprehen- 
sion was  that  Mr.  Bell  would  concede  all  they  asked,  and 
insure  the  preservation  of  the  Union  by  yielding  to  the 
demands  of  the  only  body  of  men  who  threatened  to 
destroy  it." 

The  leaders,  as  a  rule,  were  opposed  to  total  abolition, 
and  a  "gradual  emancipation"  was  discussed. 


BIOGRAPHICAL   SKETCH.  xxxix 

Bell  and  Everett  were  personally  well-known  patriots. 
They  were  statesmen  of  tried  abilities,  and  could  be 
trusted,  old  Whigs  said,  to  preserve  the  Union  and  work 
out  methods  of  emancipation  by  a  more  conservative  pro- 
cess than  the  Republicans  proposed. 

The  Southern  Unionists,  with  Randell  Hunt  as  a  con- 
spicuous leader,  united  in  support  of  the  new  party,  and 
entered  the  campaign  with  an  ardor  equaled  only  in  the 
Clay-Polk  times. 

Mr.  Hunt  presided  over  the  convention  of  the  Consti- 
tutional Union  party  which  assembled  in  the  city  of  Baton 
Rouge  July  4,  1860.  The  campaign  opened  early. 

,  Invitations  to  speak  poured  in  upon  him.  They  came 
from  Pennsylvania,  New  Jersey,  New  York,  Ohio,  and  by 
the  score  from  the  cities  of  every  Southern  State. 

He  was  himself  a  candidate  for  state  senator  from  his 
district  in  Louisiana,  bxit  his  own  election  was  a  secondary 
thought.  He  was  overwhelmed  with  professional  matters, 
too,  and  decided  to  remain  in  the  South.  Some  of  the 
letters  he  received  were  couched  in  terms  of  the  confi- 
dence and  admiration  the  people  entertained  for  him.  A 
letter,  for  instance,  signed  by  Wyatt  C.  Thomas,  corre- 
sponding- secretary  of  the  Constitutional  Club  of  Wash- 
ington, Arkansas,  pleads  with  him  to  visit  that  State,  "  to 
attend  at  a  grand  demonstration  and  barbecue  in  favor 
of  Bell  and  Everett,  which  comes  off  in  this  place  on  the 
20th  of  October.  Preparations  are  on  foot  and  in  pro- 
gress to  make  it  the  largest  and  most  splendid  meeting 
ever  held  in  the  State.  From  five  to  ten  thousand  per- 
sons will  certainly  be  present,  and  upon  that  day,  perhaps, 
will  be  decided  the  fate  of  this  State.  Will  you  allow  us 
to  appeal  to  you,  then,  under  the  circumstances,  in  vain  ? 
One  blast  now  upon  your  bugle-horn  is  worth  a  thousand 
men  !  Come  and  be  present  with  us,  and  the  Union  men 
of  Arkansas  and  the  whole  nation  will  ever  regard  your 


xl  BIOGRAPHICAL   SKETCH. 

action  with  feelings  of  the  most  profound  gratitude." 
And  another  addressed  to  him  by  J.  B.  Jones,  as  presi- 
dent of  the  Constitutional  Union  Club  of  Burlington, 
New  Jersey,  said  that  it  would  "  afford  our  people  great 
gratification  to  hear  you  in  behalf  of  the  Union  cause." 
The  pressure  to  have  him  go  North  was  too  great  to 
resist,  so  he  went  to  Philadelphia.  The  substance  of  his 
speech  in  Philadelphia,  before  the  Continental  Union 
Club,  is  given  elsewhere  in  this  volume.  One  of  his  invi- 
tations, dated  at  Jackson,  Mississippi,  September  14,  1860, 
contained  the  following  sentence :  u  We  expect  a  very 
large  assembly  of  the  people  from  Mississippi,  Louisiana, 
Alabama,  etc.,  and  we  do  not  intend  to  flatter  when  we 
assure  you  that  your  voice  will  exercise  a  powerful  and 
beneficial  influence  on  the  result  in  each  of  the  States 
mentioned."  The  letter  is  signed  by  the  following 
names  :  F.  Anderson,  R.  L.  Buck,  W.  L.  Sharkey,  W.  P. 
Anderson,  George  L.  Potter,  Patrick  Henry,  C.  L.  Buck, 
H.  IT.  Miller,  D.  Shetlon,  John  Shetlon,  and  others.1 

His  tour  was  an  ovation.  Eulogistic  introductions, 
crowds  of  people,  music,  barbecues,  receptions,  serenades, 
applause,  and  interruptions  by  occasional  fights,  —  in- 
deed, all  the  incidents  and  interest  which  marked  a  so- 
called  "  red-hot "  political  campaign,  before  the  war,  in 
the  South  and  West,  —  were  repeated  wherever  he  ap- 
peared. The  tenor  of  his  speeches  was  for  the  Union.  In 
not  one  did  lie  omit  utterances  of  loyalty  in  a  manner  and 
style  which  aroused  throngs  to  the  highest  pitch  of  excite- 
ment. He  always  quoted  from  Webster  and  Clay,  whose 
conceptions  of  a  united  country  conformed  with  his  own. 
and  concluded  with  perorations  of  fervent  hopes  for  the 
safety  of  the  country,  no  matter  what  adversities  might 
come.  It  is  hard  to  say  whether  he  believed  Bell  could 

1  jMany  of  these  persons  were  prominent  in  the  State  of  Missis- 
sippi us  lawyers  and  officials. 


BIOGRAPHICAL   SKETCH.  xli 

be  elected,  with  the  Republicans  gaining  such  strength  all 
over  the  North  and  West.  He  could  not  have  believed 
so  unless  he  was  carried  away  by  the  expressions  of  others 
whose  ill-founded  hopes  overcame  sound  judgment. 

Bell  was  ingloriously  defeated. 

The  sting  of  defeat  made  the  Breckinridge  men  avow 
their  sentiments  of  disunion,  and  secession  was  popular 
talk  in  the  South.  Conventions  were  being  called  through- 
out the  States  implicated  in  the  movement,  and  civil  war 
was  fearfully  close  at  hand. 

South  Carolina,  Mississippi,  Florida,  Alabama,  and 
Georgia  had  taken  measures  for  secession.  Louisiana 
was  more  tardy.  There  were  very  many  Unionists  in  the 
State  who  dreaded  the  step,  and  prayed  that  it  might  be 
averted.  The  current  was  too  strong,  however.  The 
governor  issued  his  proclamation  ordering  the  legislature 
to  convene  on  December  10.  A  bill  was  introduced  to 
call  a  convention  to  consider  the  adoption  of  an  ordinance 
of  secession.  There  were  many  expressions  of  a  wish 
to  hear  from  Mr.  Hunt.  His  counsel  was  needed,  and 
the  more  conservative  men  urged  the  state  senators  to 
hear  him  before  they  acted.  But  the  steamboat  upon 
which  he  had  taken  passage  to  Baton  Rouge  was  de- 
layed, and  some  impatience  was  shown.  One  prominent 
ultra-secessionist  exclaimed  :  "  What  is  the  use  of  this 
legislature  waiting  to  hear  from  Randell  Hunt  ?  We 
know  what  he  will  say."  They  did  wait  for  him.  how- 
ever, and  upon  December  12,  1860,  the  eloquence  of  his 
voice  rang  out  in  favor  of  the  Union.  By  those  who 
heard  the  speech  it  was  always  regarded  as  the  best  he 
ever  delivered.  Baton  Rouge  was  excited  at  the  an- 
nouncement that  he  would  be  heard,  and  hundreds  of 
people  were  unable  to  gain  admission  into  the  senate  hall. 
Stenographic  reports,  unfortunately,  were  not  to  be  had, 
and  no  part  of  the  speech  was  ever  printed. 


xlii  BIOGRAPHICAL   SKETCH. 

The  movement  to  call  a  convention  was  too  powerful 
the  measure   was   passed  ;    and   again   Mr.    Hunt  found 
himself  hopelessly  fighting-  for    the  same  high  principle 
of  a  United  States   that  he  had  struggled  for  in  South 
Carolina  nearly  thirty  years  before.1 

The  way  in  which  his  remarkable  oration  was  received 
can  be  gathered  by  the  following  editorial  from  a  Baton 
Rouge  newspaper :  — 

THE    RIGHT    KIND    OF    TALK    IN    THE    RIGHT    PLACE. 

As  announced  the  day  before,  the  Hon.  Randell  Hunt, 
yesterday,  soon  after  the  opening  of  the  Senate,  stood 
up  as  the  representative  man  of  the  day  and  generation 
passed  away,  and  delivered  the  most  forcible  as  well  as 
eloquent  address  ever  heard  within  the  walls  of  the  old 
Gothic  building.  His  subject  was  the  Convention  Bill, 
which,  the  public  is  already  advised,  has  passed  both 
branches  of  the  Assembly,  and  will  presently  have  the 
force  of  law.  The  whisper  about  town  that  Mr.  Hunt 
would  speak  drew  a  crowd  of  people  to  the  Senate  at 
an  early  hour,  and  hundreds  went  away  unable  to  get 
within  the  compass  of  his  voice.  From  the  antecedents 
of  the  eloquent  gentleman,  and  his  well-known  position 
on  the  great  question  which  has  absorbed  all  others,  what 
he  said  was  anticipated  ;  but  how  he  said  it  is  only 
known  to  the  fortunate  few  who  listened  to  him.  We 
cannot  pretend  to  give  his  words,  —  no,  not  even  the 
bright  scintillations  of  his  genius,  as  he  clothed  national 
and  American  sentiments  in  the  most  gorgeous  drapery, 
and  threw  them  about  as  gems,  not  only  to  da/zle,  but  to 
strike  deeply  into  the  very  heart  of  his  auditors. 

Air.  Hunt  denied  the  right  of  the  legislature  to  call 
a  convention  of  the  people  without  first  submitting  the 

1  On  January  -!(!,  1S(J1,  Louisiana  passed  the  ordinance  of  secession 
by  a  vote  of  Hi;  to  17. 


BIOGRAPHICAL  SKETCH.  xliii 

question,  according  to  time-honored  precedent  and  Demo- 
cratic usage.  He  dwelt  on  the  madness  of  separate  state 
action  on  a  question  involving  the  interest  of  others  as 
well  as  our  own  vitality. 

Is  it  too  much  to  say  that  Mr.  Hunt,  who  is  a  Louisi- 
anian  by  birth,  education,  and  spirit,  and  is  yet  proud  to 
call  himself  an  "  American  citizen,"  had  the  heart  of  his 
audience,  beating  sweet  music  to  that  noble  sentiment, 
"  The  Constitution  and  the  Union,  now  and  forever,  one 
and  inseparable  "  ?  We  think  not,  and  gain  fresh  courage 
to  battle  in  our  own  way  along  the  dark  path  before  us 
to  this  end. 

The  term  of  Mr.  Hunt  in  the  state  Senate  of  Louisi- 
ana was  not  allowed,  however  untoward  the  circumstances, 
to  pass  without  a  renewal  by  him  of  his  endeavor  of  a 
long  time  to  reform  and  liberalize  the  law  of  evidence. 
In  his  character  of  professor  of  law,  he  had  made  the 
law  of  evidence  a  subject  of  especial  study  and  reflec- 
tion. He  had  prepared  and  delivered  numerous  philo- 
sophic essays  in  advocacy  of  the  improvement  of  this 
branch  of  jurisprudence,  and  helped  to  train  for  the  bar 
of  the  State  many  young  men  who,  growing  upward,  were 
prepared  to  bring  to  his  labors  the  support  of  their  own 
best  convictions.  Mr.  Hunt  accordingly  prepared  the 
report  of  the  Judiciary  Committee  of  the  Senate  in  sup- 
port of  the  act  by  him  introduced,  relative  to  the  law  of 
evidence.  It  pronounced  the  exclusionary  rules  of  evi- 
dence to  be  false  and  degrading.  It  condemned  them  as 
obstructing  the  inquiry  after  truth  in  courts  of  justice,  as 
denying  to  innocence  the  proper  and  natural  means  of 
protection,  and  as  securing  immunity  to  fraud  and  crime. 
It  was  the  contention  of  Mr.  Hunt  —  and  he  supported  it 
by  an  appeal  to  philosophy  as  well  as  to  the  experience 
of  others  —  that  the  time  had  come  when  Louisiana  should 


xliv  BIOGRAPHICAL   SKETCH. 

act  on  the  subject,  and,  availing-  herself  of  the  wisdom  of 
others,  admit  the  evidence  of  interested  witnesses  without 
exception,  leaving  the  weight  of  evidence  to  he  determined 
by  the  judging  power. 

The  effort  of  Mr.  Hunt  failed,  owing  to  the  circumstance 
of  its  being  made  just  as  the  civil  war  broke  out.  But 
the  long  and  patient  labors  of  his  lifetime  had  not  been 
thrown  away.  They  had  deeply  impressed  the  minds  of 
men,  and  he  had  the  satisfaction  of  seeing  them  take  form 
not  long  afterwards  and  develop  into  a  law  of  the  State.1 

During  the  winter  of  18G1,  after  Mr.  Seward  had  been 
chosen  Secretary  of  State  in  the  future  Cabinet  of  Mr. 
Lincoln,  he  suggested  to  the  President  elect  that  it  would 
be  policy  to  appoint  a  Southern  man  to  the  new  Cabinet, 
and  he  submitted  for  consideration  the  names  of  Randell 
Hunt,  John  A.  Gilmer,  Kenneth  Kaynor,  and  Colonel 
Fremont.  It  was  doubtful  whether  any  Southern  man 
from  a  seceding  State  could  be  induced  to  enter  the  Cabi- 
net, but  Mr.  Seward  wrote  him  that  he  thought  Kandell 
Hunt  would  be  well  chosen.  Mr.  Lincoln,  under  date  of 
January  12, 1801,  said  ho  preferred  Mr.  Gilmer.  of  North 
Carolina,  over  Mr.  Hunt,  "because,''  wrote  the  President 
elect,  "  he  lias  a  living  position  in  the  South,  while  they  '' 
(referring  to  Mr.  Gentry  and  Mr.  Hunt)  "  have  not.''2 
It  is  doubtful  whether  Mr.  Hunt  was  ever  communicated 
with  directly  in  relation  to  this  matter.  His  refusal  to 
permit  his  name  to  be  used  for  a  high  office  :!  under  Mr. 
Lincoln,  at  a  later  period,  warrants  the  belief,  moreover, 

1  Act  of  Louisiana  Legislature,  1S(><S.  For  the  report  upon  the 
law  of  evidence,  and  for  much  else  pertaining  to  the  professional 
career  of  Mr.  Hunt,  grateful  acknowledgment  is  made  to  Hon. 
Carleton  Hunt,  of  Xe\v  Orleans. 

-  Nicolav  and  Hays'  Life,  of'  A  brnhnin  Lincoln.  The  words  "living 
position"  must  refer  to  the  fact  that  North  Carolina  had  not  yet 
passed  an  ordinance  of  secession,  and  a  Unionist  was  therefore  "  liv- 
ing." 

8  Associate  justice  of  United  States  Supreme  Court. 


BIOGRAPHICAL   SKETCH.  xlv 

that  he  would  have  declined  to  serve  in  the  Cabinet. 
It  will  be  remembered  that  not  until  after  inaugura- 
tion, upon  March  4,  1861,  did  Mr.  Lincoln  complete  the 
selection  of  his  Cabinet  ministers,  and  finally  he  compro- 
mised by  making  Montgomery  Blair,  of  Maryland,  Post- 
master-General. Maryland,  at  the  time,  is  described  as 
having  been  balancing  between  loyalty  and  open  seces- 
sion, and  the  President  thought  that  the  recognition  of 
Mr.  Blair  might  stop  the  inroads  of  secession. 

When  the  first  States  seceded,  so  violent  an  opponent 
of  their  course  was  Mr.  Hunt  that  he  would  have  brought 
them  back  into  recognition  of  the  Union  by  force.  Never 
did  he  yield  in  any  degree  his  unqualified  disapproval  of 
every  initiatory  movement  of  a  secession  which  led  up  to 
the  war  between  the  States.  Nor  is  it  going  too  far  to 
say  that  Mr.  Hunt  was  bitterly  disappointed  at  the  atti- 
tude Louisiana  and  other  Southern  States  were  taking. 
But  the  mighty  current  of  a  popular  movement,  based  upon 
conceived  moral  rights,  was  sweeping  over  the  domain  of 
eleven  States.  Political  contagion  often  overtakes  men 
with  as  little  discrimination  as  do  the  treacherous  fevers 
of  a  malarial  country  sicken  their  bodies.  To  turn  his 
back  upon  six  million  of  his  fellow-countrymen  was  more 
than  Mr.  Hunt  could  do.  Right  or  wrong,  he  wished  to 
believe  them  right ;  his  sense  of  duty  told  him  not  to  for- 
sake them  ;  they  needed  his  counsel.  He  never  had  with- 
held it  in  any  prior  emergency ;  he  could  not  do  so  now. 
His  fortunes  lay  with  the  South,  and,  secession  having 
been  undertaken,  he  then  acquiesced  in  their  plans  of  a 
confederacy. 

Historians,  in  writing  with  perfect  impartiality  of  the 
earlier  days  of  the  secession  movement,  will  not  detract 
from  the  sincerity  of  purpose  or  conviction  of  those 
Unionists,  like  Mr.  Hunt,  who  permitted  themselves  to  be- 
come identified  with  the  new  confederation.  Southern 


xlvi  BIOGRAPHICAL   SKETCH. 

men,  of  all  others,  loved  their  section  and  their  States. 
Warm-hearted  and  brave,  they  sympathized  with  their 
fellow-citizens  in  ambition,  sentiment,  and  hope. 

Imbued  with  these  natural  traits  to  an  unusual  degree, 
Mr.  Hunt  thought  that  the  government  need  not  and 
should  not  use  coercive  force  in  opposition  to  the  dissatis- 
faction that  so  many  influential  States  finally  expressed 
with  the  national  administration,  and  he  became  unwilling 
to  sanction  what  he  announced  to  be  an  abrogation  of 
all  rights  of  self-government.  This  theory  was  based,  of 
course,  upon  the  view  that  so  large  a  number  of  States 
of  the  Union  represented  a  people  rightfully  entitled  to 
self-government  under  the  Federal  Constitution.  He  did 
not  advance  any  doctrine  of  inalienable  "  state  rights  *' 
upon  the  Calhoun  lines  of  independent  sovereignty.  Nor 
was  the  conduct  of  Randell  Hunt,  and  hundreds  of  men 
who  followed  him  in  his  radical  opposition  to  secession, 
agreeable  with  the  explanation  of  Alexander  II.  Stephens, 
who  believed  in  the  "  reserved  sovereignty  of  the  States 
and  the  compact  of  the  Union  or  Constitution  of  1787," 
and  therefore  opposed  the  secession  of  Georgia  "•  as  a 
question  of  policy,  and  not  one  of  right.'' J 

Mr.  Hunt  contended  there  was  no  right  of  secession, 
but  the  policy  having  been  adopted,  allegiance  was  justi- 
fiable to  the  States  who  chose  that  policy  :  and  that  when 
so  many  States  acted  in  concord,  they  were  really  a  people;, 
and  that  therefore  a  people's  rights  were  involved  and 
their  liberties  threatened  by  coercion  of  another  part  of 
the  same  people  of  the  same  country.  This  amounts  to 
revolution,  and  is  an  inherent  right.  But  it  is  from  its 
nature  perilous,  and  is  to  be  exercised  at  the  risk  of  those 
who  invoke  it.  It  is  much  to  be  regretted  that  in  his 
papers  his  precise  views  cannot  be  found  ;  but  in  stating 

1  Testimony  of  Mr.  Stephens  before  the  Congressional  Committee 
April  !<!,  1S<;0. 


BIOGRAPHICAL  SKETCH.  .  xlvii 

them  as  above,  reference  is  had  to  such  memoranda  as  are 
obtainable,  and  such  recollections  of  his  opinions  as  are 
given  by  those  familiar  with  them.  It  is  easy  now  to 
detect  a  flagrant  inconsistency  in  the  position  above  de- 
fined, but  it  was  accepted  in  1861,  and  acted  upon  by 
many  men  of  lofty  national  patriotism. 

Perhaps  the  most  satisfactory  explanation  of  the  atti- 
tude of  Union  men  in  the  South,  who  became  passive 
when  war  was  declared,  may  be  found  in  the  Virginia 
resolutions  of  1798,  where  allegiance  to  the  Constitution 
of  the  United  States  was  expressed,  but  where  it  was  de- 
clared that  the  Assembly  of  Virginia  views  "  the  powers 
of  the  federal  government  as  resulting  from  the  compact 
to  which  the  States  are  parties  as  limited  by  the  plain 
sense  and  intention  of  the  instrument  constituting:  that 

O 

compact ;  and  that  in  case  of  a  deliberate,  palpable,  and 
dangerous  exercise  of  other  powers  not  granted  by  the  said 
compact,  the  States  who  are  parties  thereto  have  the  right, 
and  are  in  duty  bound,  to  interpose  for  arresting  the 
progress  of  the  evil,  and  for  maintaining  within  their 
respective  limits  the  authorities,  rights,  and  liberties  ap- 
pertaining to  them." 

Mr.  Hunt  never  adopted  the  resolutions  of  1798  as 
expressive  of  his  views.  It  is  certain  he  never  fully  ap- 
proved of  them.  His  conduct,  however,  in  countenancing 
the  fact  of  secession,  is  not  irreconcilable  with  the  doc- 
trines announced  in  them. 

There  was  another  motive  which  impelled  him  to  coun- 
tenance the  civil  war  when  once  it  had  begun.  Loyalty 
to  blood  and  friends  in  affliction  made  him  overlook  the 
mistaken  causes  for  their  sufferings  in  his  anxieties  to 
share  their  burdens.  This  feeling  is  best  expressed  in 
the  language  of  a  letter  written  in  1861  by  a  friend  who 
was  solicitous  of  Mr.  Hunt's  attitude.  '"  You  know,"  said 
the  correspondent,  *'  Mr.  Hunt's  generous  and  chivalric 


xlviii  BIOGRAPHICAL   SKETCH. 

nature,  —  the  more  afflicted  a  friend  is,  the  firmer  and 
kinder  he  is  :  so  with  this  Confederacy,  even  if  he  were 
not  entirely  firm  in  his  principle,  he  could  never  desert 
the  South  in  her  hour  of  adversity,  —  it  would  be  con- 
tvary  to  his  generous  nature." 

This  much  is  beyond  question  :  he  never  wrote  a  word 
or  uttered  a  syllable  savoring1  of  disloyalty  to  the  Union, 
or  from  which  can  be  inferred  a  wish  on  his  part  at  any 
time  for  its  dissolution.  No  matter  what  results  of  the 
war  were  predicted  by  others,  he  had  no  ambition  save  a 
patriotic  wish  for  the  integrity  of  the  United  States  as 
one  nation.  The  peculiar  principles  upon  which  the  Con- 
stitution of  the  Confederate  States  was  established  were 
never  Mr.  Hunt's  political  principles. 

He  saw  his  brother  leading  a  Confederate  regiment  to 
the  field.  Three  of  his  nephews,  who  were  dear  to  him 
as  sons  to  a  father,  left  his  house  to  join  the  army,  and 
his  heart  was  stricken  with  grief  upon  hearing  of  the 
gallant  death  of  one  of  them,  Captain  Thomas  Hunt 
Biscoe,1  whom  he  had  educated  and  loved  with  tender 
affection.  Bowed  down  by  daily  sights  of  the  horrors  of 
such  a  war,  disappointed,  if  not  broken-hearted,  that  he 
should  ever  have  lived  to  behold  his  country  divided  in 
itself,  he  patiently  abided  the  future,  in  confidence  that 
God  would  lead  the  nation  unto  conditions  of  common 
destiny  and  one  harmonious  whole. 

He  seems  to  have  written  nothing  during  the  darkest 
days  of  the  war  :  if  he  did,  the  memoranda  are  lost  or 
destroyed. 

Grateful  for  the  peace  which  came  in  1805,  Mr.  Hunt 
declared  himself  ready  to  accept  the  results  of  the  war 
in  a  spirit  of  reconciliation,  "  which  would  allay  pas- 

1  Captain  T.  II.  Biseoe,  Louisiana  Volunteers,  C.  S.  A.,  was  killed 
at  the  1  »attle  of  the  Wilderness,  May  5,  1864,  while  leading  a  charge 
of  battle. 


BIOGRAPHICAL   SKETCH.  xlix 

sions  and  heal  the  ghastly  wounds  inflicted  in  fraternal 
strife." 

Then  came  elaborate  arguments  upon  the  questions  of 
what  was  the  exact  status  of  the  seceding  States.  In 
these  discussions  every  opinion  he  expressed  was  received 
with  respect.  Mr.  Hunt  was  opposed  to  negro  suffrage, 
and  differed  with  Chief  Justice  Chase  upon  that  ques- 
tion. When  Mr.  Chase  visited  New  Orleans  in  1865,  he 
and  Mr.  Hunt  consulted  often  upon  reconstruction  mat- 
ters. Judge  Chase  regretted  that  Mr.  Hunt  could  not 
favor  universal  suffrage,  as  he  looked  upon  the  question 
as  one  of  paramount  importance  in  adjusting  the  relations 
of  the  Southern  States  toward  the  Union. 

Mr.  Hunt  thought,  as  did  Andrew  Johnson  and  many 
other  conservative  Republicans,  that  negro  suffrage  could 
not  be  made  a  condition  precedent  to  a  full  restoration 
of  the  Southern  States  to  the  Union  :  that  the  States 
were  in  the  Union  by  virtue  of  their  annulling  their  ordi- 
nances of  secession  and  the  abolition  of  slavery  by  con- 
stitutional amendment ;  that  the  true  object  of  the  war 
was  to  defend  and  preserve  the  Constitution  against  an 
armed  rebellion,  and  when  that  purpose  was  finally  at- 
tained by  the  suppression  of  the  rebellion,  the  authority 
of  the  Constitution  was  thereby  restored  ipso  facto,  and 
all  its  provisions  resumed  their  original  force  and  vigor ; 
and  that  questions  of  suffrage  belonged  exclusively  to  the 
legislatures  of  the  States. 

Mr.  Hunt  used  to  refer  to  a  speech  made  by  Ex-Gov- 
ernor Washington  Hunt,  of  New  York,  011  March  25, 
18G6,1  as  being  a  very  fair  presentation  of  the  conserva- 
tive views  which  he  believed  should  obtain.  Congress 
took  a  different  view,  however,  and  again  Mr.  Hunt  found 

1  The  New  York  papers    published  the  speecli   iu   full.     It  was 
delivered  at  New  Haven,  Conn. 
d 


1  BIOGRAPHICAL   SKETCH. 

himself  struggling'  on  a  losing  side  for  a  principle  based 
upon  grave  constitutional  rights. 

As  soon  as  armed  hostilities  ceased,  what  the  general 
government  was  to  do  with  Mr.  Jefferson  Davis  and  other 
leaders  of  the  secession  movement  was  a  subject  of  wide- 
spread interest.  A  scrap  written  at  the  time  by  a  listener 
to  an  interview  on  June  3,  1865,  between  Mr.  Hunt  and 
a  gentleman  now  a  distinguished  citizen  of  Louisiana,  is 
given  without  alteration  or  amendment  :  — 

"Well,  Mr. ,"  said  Mr.  Hunt,  "this  shuffling  is 

not  answering  my  question.  Do  you  think  he  ought  to 
be  hung?  " 

"  Well,  Mr.  Hunt,  I  think  he  is  a  great  evil  to  the 
country,  a  very  bad  element,  and  ought  to  be  removed." 

"  How  —  you  do  not  answer  —  how  should  he  be  re- 
moved ?  By  imprisonment  ?  " 

"  No  ;  I  disapprove  of  that.' ' 

"  By  banishment  ?  " 

"  W-e-1-1,  I  have  not  made  up  my  mind." 

"Yes,  Mr.  -  — ,  it  is  very  evident  you  Inn-c  made 
up  your  mind, — you  are  in  favor  of  hanging  him  ;  how- 
ever, if  you  have  not  made  up  your  mind,  you  will  never 
make  it  up.  Yon  must  know  what  punishment  you  would 
pronounce." 

And  so  Mr.  continued  to  shuffle,  without  ex- 
pressing an  opinion  :  it  was  evident  that  he  was  in  favor 
of  the  harshest  measures,  but  was  afraid  to  say  so. 

"  Mr.  Davis  has  always  been  dangerous  to  society  and 
to  the  Union,''  said  Mr.  Hunt.  —  "lias  always  been;  and 
Mi-.  Breckinridge,  too.  I  consider  a  dangerous  man.  I 
would  remove  him,  too.'' 

"  Hut.  Mr.  Hunt,  why  would  you  not  hang  them?" 

"  Because,  after  having  treated  them  as  belligerents, 
they  have  no  right  to  call  them  traitors  :  that  is  contrary 
to  all  the  laws  of  nations.  Because  it  becomes  a  great 


BIOGRAPHICAL   SKETCH.  li 

nation  like  the  United  States  to  be  generous  and  for- 
giving." 

"  Ah  me,"  continued  the  listener,  "  I  cannot  remember 
the  true  and  noble  words  of  Mr.  Hunt,  but  they  made  a 
great  impression  on  me.  He  would  be  opposed  to  hang- 
ing from  motives  of  state  policy  as  well  as  the  opinion 
of  Europe  (for  a  nation  should  ever  look  to  that),  and 
from  motives  of  benevolence.  He  was  not  opposed  to 
punishment  entirely,  —  to  banishment  for  a  term  of  years, 
and  then  to  be  allowed  to  return  on  taking  the  oath  and 
promising  to  be  quiet  citizens." 

"  Perhaps,"  Mr.  Hunt  added,  "  you  may  think  I  speak 
in  this  way  because  I  am  thinking  of  myself  ;  but  I  have 
no  idea  that  I  am  in  any  danger." 

The  "  reconstruction  "  of  the  South  prolonged  the  un- 
rest of  the  people  of  Louisiana,  and  they  found  them- 
selves subject  to  severe  military  government. 

During  General  Benjamin  F.  Butler's  service  at  New 
Orleans  there  was  no  little  friction  between  him  and  Mr. 
Hunt.  He  declared  Butler's  measures  and  means  cruel 
and  unwarranted  by  the  conditions  existing,  and  he 
always  spoke  of  him  as  a  man  of  coarse  and  brutal  in- 
stincts, unworthy  to  be  compared,  as  an  officer  and  a  man, 
with  General  Hancock,  whose  moderate  methods  and  con- 
sideration of  the  people  of  Louisiana  commended  them- 
selves most  highly  to  all  men,  radical  and  conservative. 

Butler  at  one  time  issued  an  order  requiring  Mr.  Hunt 
to  leave  New  Orleans.  When  the  latter  was  ready  to 
leave,  General  Butler,  being  notified  of  his  intended  de- 
parture, canceled  the  order,  with  some  statement  in  sub- 
stance that,  although  he  regarded  Randell  Hunt  as  a  very 
arrogant  man,  he  knew  as  much  as  ten  thousand  men 
combined,  and  he  might  have  need  of  him. 

In  the  summer  of  1865,  for  change,  rest,  and  at  the 
same  time  with  the  hope  of  aiding  in  the  work  of  recon- 


lii  BIOGRAPHICAL   SKETCH. 

struction,  Mr.  Hunt  went  to  the  North.  Here  again  he 
was  in  company  with  Judge  Chase,  who  introduced  him  to 
President  Johnson  in  these  written  words  :  u  A  gentleman 
of  great  ability  and  perfect  honor,  and  a  devoted  friend 
of  the  Union  until  the  fact  of  secession,  when  he  thought 
it  his  duty  to  submit  and  identify  himself  with  the  Con- 
federacy ;  is  now  an  earnest  friend  of  restoration.  He 
differs  with  me,  I  am  sorry  to  say,  on  the  question  of 
universal  suffrage,  but  neither  you  nor  I  will  think  him 
less  entitled  to  confidence  and  respect  on  that  account." 

Mr.  Hunt  laid  before  the  President,  in  burning  words, 
the  sufferings  of  the  people  in  the  South  in  the  reconstruc- 
tion time.  President  Johnson  declared  afterwards  he  did 
not  believe  any  man  had  ever  spoken  more  eloquently. 
The  President  thereupon  actually  prepared  a  proclamation 
for  the  establishment  of  a  new  government  for  Louisiana, 
and  named  Ilandell  Hunt  therein  to  be  the  military  gov- 
ernor :  but  he  afterwards  destroyed  this  proclamation  and 
discarded  the  policy  in  question,  saying  that  his  Cabinet 
advisers,  as  he  considered,  would  not  support  him  in  it. 

Since  the  resignation  of  Senators  Slidell  and  Benjamin 
in  18G1,  Louisiana,  as  a  seceding  State,  had  had  no  repre- 
sentation in  Congress.  But  the  war  being  ended,  a  legis- 
lature met  in  I860,  and  claimed  the  right  to  elect  United 
States  senators.  There  was  some  doubt  expressed  as  to 
whether  Congress  would  admit  them  until  the  exact 
status  of  the  seceding  States  had  been  finally  fixed  by 
legislation.  If  the  views  of  the  President  were  to  prevail, 
the  cessation  of  the  war  and  the  expressed  determination 
of  the  inhabitants  of  a  seceding  State  to  resume  the 
powers  of  a  State  would  require  the  admission  of  the  new 
senators;  but  if  the  government  was  to  take  jurisdiction 
over  the  time  and  manner  of  the  return  of  the  rebellious 
States,  as  Mr.  Samuel  Shellabarger,  of  Ohio,  argued  in 
Congress,  representation  surely  would  be  denied  them. 


BIOGRAPHICAL  SKETCH.  liii 

To  sustain  the  President,  no  ordinary  man  should  be 
elected  senator. 

With  unanimity  the  people  turned  to  Randell  Hunt, 
whose  name  was  advanced  by  a  leading  newspaper  in  the 
following  terms  :  "In  the  choice  for  senator  all  old  pre- 
judices :  should  be  discarded,  and  those  sterling  qualities 
of  mind  which  everywhere  command  attention  and  respect 
should,  if  possible,  be  secured.  Entertaining  these  views, 
we  have  glanced  among  our  men  of  worth  and  experience 
to  ascertain  who  could  best  protect  the  interests  and 
uphold  the  honor  of  this  State  in  that  august  body,  the 
national  Senate,  and  our  conclusion  is  that  Randell  Hunt, 
the  jurist,  the  statesman,  and  the  orator,  should  be  one  of 
the  two  on  whom  the  choice  should  fall." 

In  joint  assembly,  and  unanimously,  he  was  duly  elected 
for  the  term  of  six  years,  to  commence  March  4,  1865. 
In  this  way,  as  the  people  of  Louisiana  issued  from  a 
disastrous  war,  against  which  he  had  counseled,  they 
made  by  necessary  implication  to  him  the  greatest  ad- 
mission of  error  on  their  part  that  circumstances  would 
allow,  and  then  joined  to  render  him  the  highest  honor. 

The  day  after  he  had  been  chosen  the  papers  congratu- 
lated the  State,  referring  to  his  "  spotless  character,  his 
profound  learning,  large  experience,  unquestioned  ability, 
and  the  unobjectionable  nature  of  his  political  antece- 
dents." "We  think,"  said  one  editorial,  "the  legislature 
made  a  most  admirable  choice.  The  honor,  interests,  and 
dignity  of  Louisiana  will  be  ably  and  faithfully  sustained 
by  Mr.  Hunt,  and  when  he  takes  his  seat  there  will  not 
be  a  State  in  the  Union  represented  by  a  man  of  greater 
mark." 

Reverdy  Johnson,  then  a  senator  from  Maryland,  upon 
the  6th  of  January,  1866,  offered  the  credentials  of  Mr. 
Hunt,  "  who  appears  by  the  certificate  of  the  governor 
1  Opposition  to  secession  must  be  meant. 


liv  BIOGRAPHICAL   SKETCH. 

of  Louisiana  to  have  been  elected  one  of  the  senators 
from  that  State."  "  I  move,"  said  Senator  Johnson, 
"  that  they  lie  upon  the  table,  as  that,  1  believe,  has  been, 
the  course  taken  with  the  credentials  from  the  Southern 
States.''  There  being  no  objection,  it  was  so  ordered.1 

It  was  during  this  period  of  his  life  that  the  University 
of  Louisiana  conferred  upon  him  the  degree  of  Doctor  of 
Laws,  it  being  the  first  time  in  its  history  that  such  a 
degree  had  been  awarded  by  it.  The  diploma  was  sent 
to  Mr.  Hunt  with  the  following  loving  and  truly  fraternal 
letter  from  the  president :  — 

UNIVERSITY  OK  LOUISIANA. 

MY  DEAK  BROTHER,  —  1  have  the  honor  to  transmit 
herewith  your  diploma  as  Doctor  of  Laws  from  the 
University  of  Louisiana.  Learned  and  scientific  labors 
for  the  advancement  of  knowledge,  the  cultivation  of 
letters,  the  moi'al  and  intellectual  improvement  of  the 
citizens  of  the  Commonwealth,  the  elucidation  of  legal 
science,  the  inculcation  of  principles  of  American  patriot- 
ism and  national  liberty,  have  forever  identified  your 
fame  with  the  foundation  and  history  of  the  University  of 
Louisiana.  The  distinction  is  the  more  honorable  because 
it  was  liberally,  spontaneously,  and  justly  bestowed.  I  had 
the  proud  satisfaction,  as  President  of  the  University,  of 
conferring  the  degree  before  the  public,  and  1  felt  and 
declared  that,  in  discharging  my  official  duty,  I  performed 
the  most  grateful  act  of  my  life. 

May  you  be  crowned  with  increasing  honors,  and 
achieve  hereafter  a//  that  virtuous  ambition  can  desire,  is 
the  heartfelt  prayer  of  your  affectionate  and  devoted 
brother, 

THOMAS  HINT,  President. 
June  iii,  is<;<;. 

To  the  Honorably  IvANDKU.  1 1  ['XT,  LI,.   D. 

1  I'pou  March  1.  ISCiO,  Senator  Johnson  pursued  the  same  course 
with  reference  to  the  credentials  of  Henry  Boyce,  who  had  been 
elected  a  colleague  of  Mr.  Hunt  for  the  term  endiuq1  March  4.  1.8(57. 


BIOGRAPHICAL   SKETCH.  lv 

Weeks  and  weeks  after  presentation  of  the  senatorial 
credentials  of  Randell  Hunt  and  his  colleague,  Congress 
deliberated  the  legitimate  and  proper  relations  between 
the  Southern  States'  and  the  general  government,  and  not 
until  this  question  could  be  settled  forever  was  it  probable 
Mr.  Hunt  would  be  seated.  A  general  outline  of  his  own 
views  will  be  gathered  by  reading  the  notes  given  to  the 
public  in  these  pages. 

Many  senators  were  his  personal  friends  and  wished  to 
see  him  seated.  They  were  aware  of  his  intense  love  of 
the  Union,  his  character,  and  his  standing  as  a  lawyer. 
For  these  reasons  they  would  have  valued  his  services 
and  his  counsel.  But  the  "  iron-clad  "  oath  of  never 
having  countenanced  past  opposition  to  the  general  gov- 
ernment was  no  respecter  of  persons.  Mr.  Hunt  de- 
clined to  take  it,  and  was  placed  upon  the  same  footing 
with  Mr.  Graham  of  North  Carolina,  Mr.  Stephens  and 
Mr.  Johnson  of  Georgia,  Mr.  Manning  and  Mr.  Perry 
of  South  Carolina,  and  others  who  had  been  officials, 
legislators,  and  military  men  under  the  Confederate  gov- 
ernment, and  from  whose  views  he  seriously  dissented. 

Louisiana  was  unrepresented.  The  policy  of  Congress 
was  radically  in  opposition  to  the  administration,  and 
Mr.  Hunt  returned  to  New  Orleans  to  resume  his  profes- 
sional labors. 

That  he  was  personally  disappointed  was  natural,  but 
except  to  refer  to  what  he  believed  was  an  injustice  to  his 
State  he  never  evinced  any  individual  regret. 

It  was  not  the  first  time  that  adherence  to  principle 
and  truth  had  caused  him  sacrifice  and  sorrow. 

In  the  highest  development  of  his  professional  know- 
ledge, for  the  fifteen  years  following  his  election  as  a 
senator  he  enjoyed  a  large  and  lucrative  law  practice. 
Political  life  had  little  temptation  for  him,  except  by  way 
of  interest  in  the  general  welfare  of  the  whole  country. 


Ivi  BIOGRAPHICAL   SKETCH. 

He  was  absorbed  in  legal  and  educational  matters,  and 
could  scarcely  be  induced  to  go  outside  of  them. 

In  Lizardi's  Case,  20  La.  An.  285,  Mr.  Hunt,  who  was 
deeply  imbued  with  a  knowledge  of  the  commercial  law, 
was  enabled  to  expound  before  the  Supreme  Court  of 
Louisiana  the  doctrine  of  partnership  In  commendam,  or 
commendatory,  or  partnership  with  limited  liability,  and 
to  apply  those  principles  to  the  great  issue  before  the 
court,  whether  or  not  Manuel  J.  de  Lizardi,  a  foreign 
banker,  was  liable,  as  charged,  for  an  immense  sum,  on 
the  commercial  paper  of  J.  Y.  de  Egana,  a  merchant  of 
New  Orleans.  Partnership  with  a  limited  liability,  as 
established  by  the  legislatures  of  American  States,  affords 
but  slender  privileges,  and  presents,  as  a  conseqiience, 
but  a  diminished  theme,  in  comparison  with  the  law  of 
partnership,  as  the  latter  has  developed  in  the  countries 
of  Europe  and  in  the  State  of  Louisiana,  and  adapted 
itself  to  the  usages,  the  convenience,  and  the  commerce 
of  mankind.  In  Lizardi's  case,  as  in  the  McDonogh 
case,  Mr.  Hunt  and  his  distinguished  colleagues  had  the 
support  of  the  opinion  of  eminent  French  jurists,  who, 
being  consulted,  offered  their  advice  in  the  character  of 
jurisconsults,  and  not  as  mere  advocates.  The  counsel 
for  Lizardi  prevailed,  notwithstanding  powerful  opposi- 
tion, marshaled  under  the  leadership  of  John  A.  Camp- 
bell. Listening  to  the  argument  of  Mr.  Hunt  in  the 
Supreme  Court,  Judge  P.  II.  Morgan,  long  time  an  asso- 
ciate justice  on  the  Supreme  Bench  of  Louisiana,  con- 
sidered he  gave  it  highest  praise  when  he  said  he  doubted 
whether  Mr.  Hunt  had  ever  done  anything  better. 

In  Zunts  r.  Stackhouse,  23  La.  An.  481,  an  injunc- 
tion >uit  to  prevent  the  enforcement  of  a  mortgage  on 
a  plantation,  on  the  ground  that  the  consideration  of  the 
notes  given  by  plaintiff  to  defendant,  and  amounting  to 
one  hundred  thousand  dollars,  was  for  the  price  of  the 


BIOGRAPHICAL  SKETCH.  Ivii 

sale  of  persons,  i.  e,,  slaves,  Mr.  Hunt  was  able  to  achieve 
one  of  the  signal  triumphs  of  his  life.  The  Supreme 
Court  had  rendered  judgment  to  prevent  the  enforce- 
ment of  the  mortgage  in  question,  which  was  held  by  his 
client.  Plaintiff  was  represented  by  Christian  Roselius, 
perhaps  the  ablest  of  the  civilians  of  Louisiana  since  the 
time  of  the  founders  of  her  jurisprudence.  The  bench  of 
the  Supreme  Court  consisted  entirely  of  Republicans,  and 
their  precedent  decision  in  Wainwright  v.  Bridges,  19 
La.  An.  234,  had  ruled  that  the  abrogation  of  the  law 
which  gave  sanction  to  the  condition  of  slavery  had  left 
the  courts  without  authority  to  enforce  contracts  relating 
thereto  ;  but  the  circumstances  seemed  only  to  nerve  Mr. 
Hunt  to  unusual  exertion.  He  found  in  the  plaintiff's 
offer  to  prove  that  the  consideration  of  the  notes  in  con- 
troversy was  slaves  a  just  opportunity  in  behalf  of  his 
client  to  establish  what  the  consideration  truly  was,  in 
order  to  avoid  suppression  of  the  truth.  Recalled  from 
original  error  by  the  address  of  Mr.  Hunt,  the  court 
proceeded,  on  principles  of  law,  resting  on  the  best  and 
surest  foundation,  to  overrule  their  own  judgment,  and  to 
remand  the  case  for  proper  trial.  The  victory  which 
Mr.  Roselius  had  achieved  was  wrested  from  his  grasp. 
The  argument  of  Mr.  Hunt,  which  effected  the  result,  is 
described  by  those  who  listened  as  having  been  a  forensic 
effort  of  the  very  highest  order.  It  is  probably  the  last 
of  the  elaborate  efforts  made  by  him  in  the  Supreme 
Court  of  the  State. 

In  the  controversy  which  arose  over  the  great  fran- 
chises of  the  New  Orleans  Gaslight  Company,  Judge 
John  A.  Campbell  was  aroused  to  admiration  by  the 
resources  exhibited  by  Mr.  Hunt's  argument.1  He  went 
on  to  express  his  estimate  of  Mr.  Hunt  as  a  jurist.  Judge 

1  Crescent  City  Gaslight  Co.  v.  New  Orleans  Gaslight  Co.,  27  La. 
An.  Reports,  p.  138. 


Iviii  BIOGRAPHICAL   SKETCH. 

Campbell  was  himself  of  counsel.  It  was  his  opinion, 
expressed  in  argument  in  trial  court,  before  the  public, 
that  in  this  broad  land  the  number  of  Mr.  Hunt's  equals 
at  the  bar  was  so  limited  that  they  could  be  counted  011 
the  fingers  of  the  speaker's  hands. 

The  proceedings  in  the  Circuit  Court  of  the  United 
States,  Judge  Edward  II.  Durell  presiding,  by  favor  of 
which  William  Pitt  Kellogg  was  made  governor  of  Loui- 
siana, and  the  machinery  of  a  state  government  set  on 
foot  in  1872,  were  condemned  as  odious  and  usurpatory 
by  Mr.  Hunt.1  lie  gave  his  services  as  counsel  for  the 
defense.  He  considered  it  was  a  flagrant  abuse  to  em- 
ploy a  bill  in  equity  to  perpetuate  testimony,  for  the 
purpose  of  substituting  the  compilations  of  the  Returning 
Board,  to  stand  for  titles  to  officers  elected  by  the  people. 
The  issuance  of  the  writ  of  injunction  by  Judge  Durell, 
prohibiting  the  meeting  of  those  who  claimed  to  be 
members  of  the  Senate  and  House  of  Representatives 
of  the  State  of  Louisiana,  was,  as  Mr.  Hunt  believed,  an 
act  of  judicial  malfeasance  amounting  to  outrage  on  the 
public  liberties.  Such,  it  will  be  remembered,  became 
the  judgment  of  the  bar  and  of  the  country.  The  state 
government,  of  which  Mr.  Kellogg  was  chief  executive, 
thus  brought  into  existence,  encountered  tumult,  and 
almost  brought  on  civil  war.  Judge  Durell,  overcome 
by  the  force  of  public  opinion  aroused  against  him  by  the 
transactions  hero  referred  to,  and  by  the  profligate  distri- 
bution of  patronage  in  his  court,  was  compelled  to  resign. 
He  retired  after  the  House  of  Representatives  of  the 
United  States  had  instituted  inquiry  into  his  conduct, 
and  the  shocking  particulars  thereof  had  been  spread 
before  tin;  American  public. 

Meanwhile,  with  gathering  years,  Mr.  Hunt  separated 
himself  more  and  more  from  public  affairs.  As  one 
KclliiM-o-  ,-.  \Varinmitli  ft.  a/.,  14  Federal  Cases,  p.  L'."J7. 


BIOGRAPHICAL   SKETCH.  lix 

embraces  a  friend  with  whom  he  has  long  traveled,  before 
the  time  of  parting  arrives,  so  he  drew  closer  and  closer 
to  his  cherished  studies  of  the  law.  He  had  begun  life 
in  New  Orleans  by  lecturing  on  commercial  law.  On  the 
organization  of  the  law  department  of  the  University  in 
1847  he  became  professor  of  commercial  law  and  the  law 
of  evidence.  He  now  added  to  his  professional  duties 
instruction  in  constitutional  law.  He  clung  to  the  oppor- 
tunity, even  in  his  old  age,  of  imparting  to  the  young  the 
principles  of  American  constitutional  jurisprudence,  as 
they  are  to  be  derived  from  "  The  Federalist,"  and  from 
Marshall  and  Story  and  Kent,  and,  justly  speaking,  did 
more  in  his  time  than  all  others  in  Louisiana  to  hand 
down  to  those  who  were  to  succeed  him  the  construction 
of  the  Constitution  of  our  common  country.  While  pro- 
fessional rewards  poured  in  on  him  in  a  copious  stream,  he 
grew  poor  instead  of  rich.  The  distresses  of  the  time 
just  after  the  war  brought  him  many  appeals  for  help. 
These  he  answered  with  a  generosity  so  complete  that  he 
actually  despoiled  himself  to  go  to  the  assistance  of 
others.  The  tenderness  of  his  heart  made  him  really 
suffer  when  those  he  loved  happened  to  be  in  distress, 
and  he  could  not  hear  the  call  of  charity  without  going  to 
the  rescue  of  the  afflicted. 

General  Hancock,  while  in  command  at  New  Orleans,  in 
1868,  sought  Mr.  Hunt's  counsel  upon  all  questions  affect- 
ing the  government  of  the  States  where  any  construction 
of  rights  was  involved.  It  is  pleasant  to  note  the  cordial 
intercourse  between  General  Hancock  and  Mr.  Hunt.  "  I 
desire  to  consult  with  you  upon  matters  of  public  welfare," 
wrote  the  general  to  him,  soliciting  his  advice.  Letters 
defining  his  interpretation  of  the  acts  of  Congress,  over 
General  Hancock's  signature,  were  submitted  to  Mr.  Hunt's 
inspection  ;  so  were  orders  issued.  A  note  dated  February 
22,  1868,  from  Hancock,  upon  state  finances,  among 


Ix  BIOGRAPHICAL   SKETCH. 

other  things,  says  :  "  I  have,  unfortunately,  lost  the  power 
of  expression  of  your  matured  views.  My  order  is  crude, 
borrowed  in  part  from  yours  :  but  being  a  patchwork,  it 
has  lost  much  that  was  valuable.''  And  repeatedly  the 
general  thanked  him  for  his  kindness  and  valuable  aid. 

His  friends  were  opposed  to  his  giving  up  public  life, 
and  we  find  him  forced  into  some  prominence  again  about 
1870.  Louisiana  was  confronted  with  political  misfor- 
tunes. Northern  men  were  holding  office  by  appointment 
throughout  the  State.  The  so-called  "  Carpet  Bag  Hide  " 
was  at  its  height,  and  distasteful  to  the  large  majority  of 
the  whites  of  the  South.  Business  depression,  political 
difficulties,  and  general  internal  disorder  were  common. 
The  Kepublican  party  was  in  power  nationally  and  in 
Louisiana.  General  Grant,  as  President,  believing  that 
it  was  necessary  to  enforce  the  amendments  to  the  Con- 
stitution of  the  United  States  rigidly,  pursued  a  course 
unsatisfactory  to  nearly  all  of  the  white  persons  in  the 
State.  Committees  were  formed  in  New  Orleans  to  set 
forth  the  grievances  of  the  people,  and  again  we  find  the 
leading  men  of  Louisiana  appealing  to  Mr.  Hunt  to  help 
secure  a  political  prosperity  which  could  not  come  with 
strangers  governing  the  State.  lie  responded  to  their  in- 
vitations by  letters  of  advice,  but  took  no  very  active  part. 

In  1873  lie  was  appointed  a  member  of  the  committee 
selected  by  the  People's  Convention  of  Louisiana  to  visit 
Washington  in  the  interests  of  the  State,  but  was  obliged 
to  decline. 

A  single  speech  during  the  presidential  campaign  of 
1876  virtually  closed  his  participation  in  politics.  His 
sympathies  were  with  Mr.  Tilden,  because  lie  thought  the 
whole  country,  and  the  progress  of  the  South  as  a  part 
of  the  country,  would  be  more  advanced  by  Democratic 
success  than  it  would  be  under  the  Republicans.  The 
announcement  that  Mr.  Hunt  would  express  his  views 


BIOGRAPHICAL   SKETCH.  Ixi 

drew  a  larcre  audience,  and  his  remarks  were  most  favor- 

O  ' 

ably  received.  "  The  power,  the  cogency,  and  the  ear- 
nestness with  which  he  spoke  last  evening  gave  proof  that 
he  still  retained  his  wonted  powers,"  was  the  criticism  of 
the  press.  It  was  his  last  public  oral  expression  upon 
purely  political  issues,  and  by  a  fatalism,  almost  a  destiny 
in  his  career,  he  lived  to  again  behold  the  policies  he 
contended  for  rejected  and  cast  aside. 

His  health  was  somewhat  impaired.  A  paralytic  stroke 
severely  shocked  his  physical  system,  and  he  was  not  as 
strong  after  recovery  as  he  had  been  before.  Retirement 
from  public  affairs  was  welcome  to  him,  and  he  preferred 
his  profession. 

During  the  excitement  which  followed  the  elections  of 
November,  1876,  he  became  interested  in  the  electoral 
commission  bill,  and,  yielding  to  requests,  wrote  an  article 
denouncing  the  measure  as  an  invalid  makeshift.  The 
portions  of  the  essay  which  have  been  found  are  given  to 
the  public.  Many  of  the  ablest  constitutional  lawyers 
took  similar  views,  and  many  yet  regard  the  commission 
as  but  an  expediency  created  at  the  time  to  avert  possi- 
ble bloodshed. 

Educational  affairs  always  had  his  close  attention. 
The  University  of  Louisiana  was  a  source  of  much  pride 
to  him,  and  he  regarded  its  growth  as  an  honor  to  the 
State.  With  the  Law  School  he  was  especially  identified, 
having  been  elected  one  of  the  professors  in  1847,  when 
it  was  founded.  He  lectured  upon  the  law  of  evidence, 
commercial  and  criminal  law,  for  forty  consecutive  years. 
The  students  looked  up  to  him  in  admiration  of  his  erudi- 
tion and  eloquence.  Of  a  cultivated  ease  of  style,  of  grace 
of  diction,  of  felicitous  expression,  of  varied  learning,  — 
historical,  political,  and  classical,  —  his  lectures  are  in 
themselves  beautiful  monuments  to  his  knowledge  of  the 
law,  and  to  the  liberal  expansion  of  his  mind.  He  was  a 


Ixii  BIOGRAPHICAL   SKETCH. 

student  of  the  science  of  the  law.  With  industry  he  de- 
voted his  life  to  his  profession,  and  to  such  literary  pursuits 
as  would  tend  to  perfect  him  as  a  counselor  and  an  in- 
structor. The  range  of  his  reading-  was  almost  without 
bounds,  and  in  the  lecture-room  he  displayed  a  wealth  of 
talent  and  scholastic  accomplishments  that  placed  him  on 
an  equality  with  the  greatest  lecturers  of  the  law  known 
by  the  profession  in  America.  No  student  who  ever  at- 
tended his  lectures  can  forget  him  when  he  extolled  the 
Constitution.  Defining  in  eloquent  words  the  composition 
of  the  political  organization  of  our  land,  often  throwing 
aside  his  lecture-book,  and  moved  by  the  inspiriting  men- 
tion of  the  liberties  handed  down  to  us  by  the  Revolu- 
tionary heroes,  his  apostrophes  to  freedom  made  him  seem 
an  orator  of  the  times  of  Webster,  or  a  commentator  of 
the  days  of  Story  and  Adams. 

In  1807  he  succeeded  his  distinguished  brother,  Dr. 
Thomas  Hunt,  as  president  of  the  University,  continuing 
as  a  professor  in  the  Law  School  until  1888. 

His  vigorous  constitution  had  been  yielding  to  the  in- 
firmities of  advanced  age  for  several  years.  His  hearim-1 

O  J  O 

became  seriously  impaired,  and  his  mind  seemed  less 
active.  His  disposition  was  to  work  as  hard  as  he  ever 
had,  and  he  did  little  else  besides  read  and  study  ;  but  he 
complained  of  his  eyes,  and  said  he  had  to  read  slowly  in 
order  to  follow  the  thoughts  of  his  text. 

He  had  passed  his  eighty-fourth  birthday  when  he 
wrote  his  commentary  upon  the  Louisiana  State  Lottery. 
It  was  the  labor  of  many  weeks,  written  very  slowly  and 
in  a  somewhat  detached  manner.  The  manuscript  shows 
that,  in  resuming  from  time  to  time,  he  often  wrote  what 
he  had  covered  before.  Pages  were  skipped,  and  occa- 
sionally the  tremulousness  of  the  handwriting  makes  his 
letters  difficult  to  read.  The  method  by  which  he  treated 
the  subject,  commeneiiiff  with  a  review  of  the  origin  of 

•  i  O  O 


BIOGRAPHICAL  SKETCH.  Ixiii 

contracts  of  hazard,  illustrates  the  thoroughness  with 
which  his  mind  investigated  whatever  it  dwelt  upon. 

He  retired  as  a  professor  in  the  Law  School  in  1888, 
having  previously  been  elected  Emeritus  Rector.  The 
Board  voted  him  an  annual  sum,  to  continue  during  his 
life,  and  unanimously  passed  the  following  resolution :  — 

"  The  Board  desires  to  tender  to  Mr.  Hunt  its  thanks 
for  his  eminent  services  as  a  professor  from  the  establish- 
ment of  the  University,  more  than  forty  years  ago,  and 
as  president  for  nearly  twenty  years  of  its  existence,  and 
its  congratulations  to  him  that  in  a  green  old  age,  while 
removed  from  the  heat  and  burden  of  the  day,  he  can 
still  employ  the  leisure  of  his  clear  and  vigorous  intellect 
in  literary  tasks,  for  which  his  profound  learning  and 
great  ability  fit  him  ;  and,  finally,  it  begs  leave  to  express 
the  hope  that  peace  and  happiness  may  crown  his  labors, 
and  his  presence  with  us  may  long  shed  honor  on  the 
University  and  State." 

Although  aged  and  infirm,  a  last  duty  to  his  State 
made  him  vote  against  the  lottery  candidates  at  the  state 
election  in  1890. *  In  conversing  upon  the  perniciousiiess 
of  a  legalized  lottery  he  displayed  the  deepest  feeling.  It- 
was,  perhaps,  the  subject  of  all  others  of  a  public  nature 
which,  in  the  last  years  of  his  life,  most  aroused  him.  He 
spoke  with  sincere  regret  of  his  inability  to  go  forth  and 
battle  against  the  candidates  of  the  company,  for  he 
would  regard  their  success  as  a  disgrace  to  Louisiana. 

The  alumni  of  the  Law  School,  at  their  last  banquet 
before  his  death,  as  was  their  custom,  cordially  asked  him 
to  join  them  in  their  festivities.  His  response,  written 
in  a  faltering  hand  to  Judge  W.  T.  Houston,  closed  in 
these  words :  — 

1  An  issue  in  the  Louisiana  elections  of  1890  was  whether  the 
lottery  company  ^should  or  should  not  have  its  charter  extended. 
The  anti-lottery  candidates  were  elected. 


Ixiv  BIOGRAPHICAL   SKETCH. 

"  The  law  which  you  have  chosen  for  your  profession, 
gentlemen,  is  the  only  safeguard  of  the  rights  of  man,  — 
of  his  life,  liberty,  property,  and  character,  and  whatever 
else  is  dear  to  a  rational  being.  lie  who,  by  diligent 
study,  acquires  a  profound  knowledge  of  its  principles 
and  engages  in  its  practice  faithfully,  necessarily  con- 
tributes largely  to  the  peace  and  happiness  of  society. 
There  is  no  higher  office  on  earth  —  none  that  more 
strongly  commends  itself  to  the  esteem,  confidence,  and 
grateful  respect  of  man  —  than  that  of  the  wise  and 
upright  judge  administering  the  law.  Lawyers  have 
been,  throughout  time,  as  history  attests,  the  fearless  and 
powerful  champions  of  popular  liberty  against  tyranny 
and  oppression.  The  noble  sentiments  of  the  Itomaii 
and  Grecian  orators,  of  Cicero  and  Demosthenes,  and 
others,  still  resound  in  our  republican  ears,  in  delight- 
ful unison  with  those  of  the  grand  host  of  our  Revolution- 
ary fathers  in  favor  of  our  American  liberty. 

"  I  trust,  gentlemen,  you  will  pardon  this  encomium 
of  our  profession,  as  naturally  evoked  by  your  friendly 
invitation." 

Loving  relations,  friends,  and  admirers  made  the  last 
few  months  of  his  life  as  peaceful  as  he  could  have  wished. 
Several  times  he  seemed  so  close  to  death  that  physicians 
were  astonished  at  the  vitality  of  a  system  which  enabled 
him  to  recover  and  move  about  again.  Hut  the  rally 
was  temporary.  He  died  on  the  22d  of  March,  1802. 

Throughout  Louisiana  unusual  marks  of  respect  were 
paid  his  memory.  The  faculty  of  the  Law  School  adopted 
these  resolutions  :  — 

"Whereas,  RANDKU,  HUNT,  whose  death  we  mourn, 
was  for  many  years  connected  prominently  with  the 
University  of  Louisiana,  afterwards  and  now  the  Tulane 
University  of  Louisiana,  and  his  long  and  distinguished 
services  as  president  of  the  University,  as  professor  of 


BIOGRAPHICAL   SKETCH.  Ixv 

constitutional  law,  commercial  law,  and  the  law  of  evi- 
dence, and  as  dean  of  the  law  department,  render  it 
proper  that  this  faculty  should  mark  their  respect  for  his 
memory : 

"  Resolved,  That  this  faculty  attest  the  great  learning 
as  a  jurist  and  the  talent  of  the  highest  order  displayed  by 
the  deceased  as  a  professor,  and  the  very  large  number  in 
this  and  in  other  States,  prepared  for  the  highest  posi- 
tions at  the  bar  and  on  the  bench  by  the  legal  education 
received  at  his  hands,  are  deeply  impressed  with  the  obli- 
gation they  owe  to  him,  and  will  ever  hold  his  memory 
in  grateful  veneration. 

"  Resolved,  That  this  faculty  recognize  the  great  and 
deserved  professional  eminence  attained  by  the  deceased ; 
they  recall  that  this  distinction  was  won  in  litigation  ex- 
tending over  half  a  century,  conducted  before  courts  of 
uncommon  ability,  and  that  his  triumphs  were  achieved 
in  competition  with  adversaries  of  the  highest  character 
as  jurists  and  advocates  ;  and  in  view  of  the  long  career 
of  the  deceased  at  the  bar,  prolonged  beyond  the  usual 
limit,  this  faculty  affirm  the  appreciation  of  the  bench 
and  bar  that  the  deceased,  in  the  period  of  his  vigor  and 
usefulness,  held  his  place  in  the  foremost  rank  of  the 
profession. 

"  Resolved,  That  the  deceased  was  conspicuous  for  pub- 
lic spirit  and  responsiveness  to  all  the  duties  of  citizen- 
ship, and  illustrated  in  his  life  and  conduct  the  virtues 
incident  to  the  domestic  relations. 

"  Resolved,  That  the  dean  record  these  resolutions,  and 
transmit  a  copy  to  the  family  of  the  deceased. 

"  THOMAS  J.  SEMMES. 

"  HENRY  DENIS. 

"  HARRY  H.  HALL. 

"HENRY  C.  MILLER. 

"F.  A.  MONROE." 


Ixvi  BIOGRAPHICAL   SKETCH. 

The  administrators  of  the  University  of  Louisiana 
passed  the  following-  resolutions  :  — 

"  Resolved,  That  in  receiving  the  announcement  of  the 
death  of  Handell  Hunt,  LL.  D.,  we  recall  with  grateful 
recollection  the  valuable  services  rendered  by  him  during 
his  long  and  conspicuous  life  in  this  city.  For  many 
years  he  was  the  distinguished  chancellor  of  the  Univer- 
sity of  Louisiana,  a  professor  in  the  law  department, 
the  active  and  influential  exponent  and  defender  of  its 
interests,  guiding  and  protecting  it  through  trying  and 
eventful  periods  of  its  history.  His  profound  learning 
and  varied  accomplishments,  his  liberal  and  comprehen- 
sive views  on  all  important  questions,  the  weight  and 
influence  of  his  personal  character,  his  earnest,  persist- 
ent, and  zealous  advocacy  of  the  cause  of  education 
through  all  phases  of  its  development,  from  the  common 
school  to  the  university,  have  combined  to  give  him  a 
place  among  the  most  illustrious  names  of  the  Common- 
wealth, lie  has  left  the  impress  of  a  noble  personality, 
of  the  highest  professional  eminence,  of  splendid  intel- 
lectual attainments,  consecrated  to  patriotic  and  unselfish 
ends,  upon  the  State  of  Louisiana,  which  he  loved  so  well 
and  served  so  faithfully,  and  upon  the  destinies  of  the 
University  to  which  lie  gave  so  large  a  share  of  the  best 
efforts  of  his  manhood.  Forced,  during  the  last  few  years 
of  his  life,  by  the  increasing  burdens  of  ago  and  declin- 
ing health,  into  comparative  seclusion  and  retirement, 
there  has  been  for  those  who  knew  and  honored  him 
always  the  remembrance  of  a  past  filled  with  the  full 
measure  of  a  distinguished  and  an  honorable  citizenship. 
\ow  that  death  has  removed  forever  the  form  that  was 
once  familiar  in  the  University,  and  hushed  the  voice  that 
once  could  thrill  the  multitude  with  its  eloquence,  the 
historic  record  of  his  eminent  services,  his  loyal  fidelity 
to  sound  learning,  his  patriotic  xeal  and  devotion,  will 


BIOGRAPHICAL   SKETCH.  Ixvii 

serve  as  an  inspiration  to  others,  and  remain  as  an  inef- 
faceable page  in  the  annals  of  the  State." 

Many  other  complimentary  tributes  were  paid  by  the 
press  and  bar  of  the  State. 

It  is  thought  proper  to  preserve  the  solemn  and  kindly 
words  of  the  Rev.  Dr.  Percival,  of  the  Episcopal  Free 
Church  of  the  Annunciation  in  New  Orleans,  who 
said :  — 

u  It  is  but  once  in  a  lifetime,  if  at  all,  that  occasion 
is  offered  us  of  assisting  at  a  solemnity  of  so  notable  a 
type.  The  character  of  the  large  assembly  now  gathered 
here  bears  witness  to  this ;  testifies  to  the  fact  that  an 
illustrious  member  of  this  community  has  departed  from 
us,  that  the  earth  has  opened  to  receive  the  ashes  of  one 
of  God's  noblest  sons.  The  wonderful  energies  of  the 
master  intellect,  the  throbbing  of  the  great  heart,  the  rich 
activities  of  the  splendid  manhood,  have  now  at  length 
finished  their  earthly  appointed  service  ;  and  while  we 
gaze  pensively  and  in  sadness  yet  once  more  on  the  mor- 
tal past,  so  restfully  sleeping  before  us,  which  endured 
so  much  and  so  long,  we  are  reminded  of  the  personality 
which  it  typifies,  that  towered  so  high  when  in  our  pres- 
ence, that  stood  ever  so  conspicuous  among  us,  —  of  him 
who  now  is  viewing,  let  us  believe  it,  with  rapture  and 
amazement,  his  radiant  heavenly  and  earthly  crown. 

"  Time  will  only  permit  here  of  a  hasty  and  most  im- 
perfect review  of  the  earthly  career  of  one  of  whom  it 
may  be  truly  said,  '  Though  dead,  he  yet  speaks.'  .  .  . 

"  We  must  not,  however,  close  this  poor  tribute  to  him 
whose  record  is  so  full  of  all  that  is  elevated  and  illustri- 
ous without  at  least  a  brief  allusion  to  those  many  quali- 
ties of  heart  and  soul  which  lent  to  the  whole  fabric  of 
his  lofty  character  that  peculiar  beauty  and  sweetness 
which  won  all  who  came  within  the  circle  of  their  gracious 
influences. 


Ixviii  BIOGRAPHICAL   SKETCH. 

"  Generous  even  to  a  fault,  all  he  had  he  gave  to 
others.  Tender  even  to  weakness,  his  car  never  closed 
to  any  appeal.  The  sacrifices  he  made  for  others  cannot 
be  exaggerated,  and  his  many  good  deeds,  though  un- 
known to  the  world,  will  yet  come  to  view,  for  they  shall 
live  and  shine  forever.  Farewell,  brother  beloved,  son 
of  eternal  principle,  exemplar  of  noble  conduct,  brave, 
courageous  heart,  ever  decided,  ever  true  to  conviction. 

"'  For  the  last  time  thy  trembling  footsteps  have 
sought  the  table  of  the  Lord  ;  for  the  last  time  thou  hast 
invited  the  angel  guardian  to  bring  the  much-coveted 
message,  setting  thee  free  from  those  bodily  infirmities, 
those  mental  troubles,  which  have  been  for  so  long  a 
period  thy  weary,  thy  wearing,  thy  heavy  cross.  A  hus- 
band's, a  brother's,  a  friend's  greeting  thou  hast  given  for 
the  last  time ;  and  thy  strong  faith  has  now  carried  thee 
into  the  presence  of  that  God  whom  thou  hast  always 
loved  so  well,  whose  sovereign  will  thou  hast  ever  revered, 
and  to  whose  mysterious  dispensations  thou  hast  ever 
meekly  bowed." 

Followed  by  the  most  distinguished  men  in  the  State, 
including  the  members  of  the  bar,  the  president,  faculty, 
and  students  of  Tulane  University,  Mr.  Hunt  was 
buried  at  the  Metairie  Cemetery,  on  the  outskirts  of  New 
Orleans.  Shading  his  grave  grows  a  mighty  moss-covered 
oak,  to  mark  the  spot  by  a  natural  and  appropriate  monu- 
ment of  power  and  strength. 

Upon  the  opening  of  the  Supreme  Court  at  its  April, 
1802,  term,  Edwin  T.  Merrick,  the  venerable  ex-chief 
justice  of  Louisiana,  presented  to  the  court  resolutions 
concerning  the  deatli  of  Mr.  Hunt.  Judge  Merrick's  re- 
view of  Mr.  Hunt's  career  was  accurate  and  clothed  in 
most  graceful  terms.  After  speaking  of  the  many  learned 
men  who  practiced  in  tin;  early  days  of  Louisiana,  lie  re- 
ferred to  Mi'.  Hunt  in  the  following  language:  — 


BIOGRAPHICAL   SKETCH.  Ixix 

"  In  the  city  the  bar  was  adorned  by  such  conspicu- 
ous names  as  Mazureau,  Grymes,  Preston,  Pierre  Soule, 
Roselius,  Micou,  Bradfoi-d,  Legardeur,  and  Benjamin. 
It  was  among  such  men  and  orators  as  these  that  a  place 
of  distinction  was  assigned  to  Mr.  Hunt  by  them,  and  he 
was  classed  as  a  leader.  I  think  I  may  say  that  the 
consensus  of  all  placed  Mr.  Hunt,  in  those  days,  as  the 
most  finished  orator  we  had  at  the  bar  in  the  State. 

"  Of  course  there  was  a  vast  difference  in  conducting 
arguments  by  these  distinguished  men :  some  could  win 
by  the  masterly  array  of  the  facts  of  a  case,  some  by  the 
mere  force  of  dry  logic,  others  by  a  power  to  awaken 
interest  and  sympathy  and  carry  the  juries  by  adorned 
reason. 

"  In  this  last  category  Mr.  Hunt  could  well  be  placed. 
His  oratory  so  ornate  and  polished,  his  periods  so  full 
and  flowing,  filled  with  sentiments  elevated  and  noble, 
seemed  to  be  formed  upon  the  great  models  of  Cicero, 
which  had  charmed  us  all  in  our  earlier  studies  as  it  had 
done  each  preceding  age. 

"  Without  knowing  Mr.  Hunt's  habits,  I  never  heard 
him  without  thinking  the  excellency  of  his  orations  was 
the  result  of  much  study ;  but  then  they  were  worthy  of 
that  study. 

"  As  a  statesman  Mr.  Hunt  was  controlled  by  an  ar- 
dent and  exalted  patriotism. 

"  As  dean  of  the  legal  department  of  the  University 
he  was  honored  and  admired  by  the  graduates." 

The  resolutions  recited  the  distinguished  services  of 
Mr.  Hunt  as  a  lawyer  and  an  advocate  and  a  professor. 

Chief  Justice  Bermudez,  in  speaking  for  the  court, 
used  the  following  words :  — 

"  Upon  the  lion,  liandell  Hunt  Providence  had  lav- 
ished munificently  choice  favors. 

"  He  was  exceptionally  endowed,  physically  and  men- 
tally. 


Ixx  BIOGRAPHICAL   SKETCH. 

u  His  deportment  was  such  that  it  attracted  attention 
wherever  he  went,  and  provoked  inquiry.  The  eye  was 
pleased  to  dwell  upon  him  and  observe  his  movements 
and  ways. 

"  He  was  blessed  with  a  broad,  scanning',  searching-, 
penetrating,  analytical  mind,  which,  after  possessing  itself 
of  a  subject,  made  him  master  it  in  its  entirety  and  in  its 
important  details. 

"•  It  was  a  prompt  and  ready  mind,  essentially  logical 
and  judicious,  which  at  once  realized  the  strong  and  the 
weak  points  of  the  subject  under  its  survey  and  scrutiny. 

"  He  was  a  scholar,  having  received  a  thorough  classi- 
cal education,  which  enabled  him  to  furnish  his  intellect 
plentifully  from  all  the  fields  of  learning  and  knowledge. 

kk  He  could  read  and  speak,  with  marked  correctness, 
languages  not  his  own.  which  permitted  him  to  enrich  his 
mind  abundantly  from  stores  not  entered  by  the  many. 

"  The  study  of  the  law  had  a  special  and  irresistible 
attraction  for  him. 

"  His  classical  education,  his  knowledge  of  the  Latin, 
French,  and  Spanish  languages,  enabled  him  to  explore 
the  immense  regions  of  the  Roman,  French,  and  Spanish 
systems,  so  as  to  imbue  himself  fully  with  a  scientific 
appreciation  of  the  laws  of  Louisiana,  which  are  mainly 
derived  from  those  different  sources. 

"He  belonged  to  a  bar  composed  of  men  of  acknow- 
ledged eminence,  such  as  Livingston,  Kustis,  Slidell, 
Hennen,  Grymes,  Soule,  Mazureau,  Benjamin,  Bonford, 
fmiilhe,  Roselins,  Janin,  Bradford,  and  others,  whose 
equal  he  was,  and  with  whom  he  coped,  frequently  and 
successfully. 

"lie  was  a  splendid  orator,  learned,  impressive,  and 
eloquent:,  fascinating  judges  and  jurors  at  his  pleasure. 

"lie,  was  an  admitted  leader  in  his  profession,  and 
quite  often  was  employed  in  the  most  complicated  and 


BIOGRAPHICAL   SKETCH.  Ixxi 

important  controversies.  He  was  a  jurist,  and  a  man  of 
great  talent  and  genius. 

''  It  would  take  too  long  to  enumerate  and  describe  the 
celebrated  instances  in  which  he  was  thus  engaged.  The 
State  and  Federal  Reports  which  mention  them  show 
what  difficulties  they  presented,  and  he  controlled  them 
successfully.  The  Girard,  McDonogh,  Shepard  will  cases, 
the  Slaughter  -  House,  Lizardi,  Wine  cases,  figure  con- 
spicuously among  them. 

"  He  was  for  some  forty  years  a  distinguished  profes- 
sor of  law,  commercial,  constitutional,  criminal,  and  other, 
at  the  University  ;  at  times,  its  dean  ;  retiring  finally,  on 
account  of  ill  health,  as  emeritus  professor,  with  the  previ- 
ously received  degree  of  doctor  of  laws. 

"  Very  many  are  those  who  have  studied  under  him 
during  this  long  period,  and  to  whom  he  has  imparted 
liberally  his  varied  and  extensive  acquirements.  Many 
of  them  have  reached  to  superiority,  and  even  to  emi- 
nence in  their  department,  and  cherish  the  recollection  of 
their  invariably  pleasant  intercourse  with  him,  officially 
and  personally. 

"  He  was  a  faithful  citizen  and  a  devoted  patriot,  serv- 
ing his  country  in  legislative  halls,  and  was  always  found 
among  the  leaders  in  political  conservative  movements. 

"  He  would  sway  popular  assemblies,  invariably  cham- 
pioning the  good  and  rightful  cause,  most  promotive  of 
public  weal  and  happiness.  He  was  a  statesman. 

"  He  might,  on  several  occasions,  have  filled  important 
federal  positions,  had  he  chosen,  such  as  attorney-general, 
justice  on  the  Supreme  Bench,  and  others  ;  and  had  he 
done  so  he  would  surely  have  signalized  himself  in  any 
of  them.  He  was  eminently  qualified  for  all. 

"  The  country  has  sustained  a  heavy  blow  in  losing  him, 
but  he  has  gone  from  among  his  fellow-men  after  an 

O  O 

honorable,  well  -  filled,  and  glorious  life,  regretted  and 
loved,  never  to  be  forgotten.'' 


Ixxii  BIOGRAPHICAL  SKETCH. 

Intellectual  greatness  alone  is  often  known  by  the 
eminence  of  a  position  which  may  demonstrate  the  talents, 
but  which  too  often  shrouds  from  general  view  the  inner 
nature  of  a  man  who  holds  exalted  station. 

Respect  and  reputation  are  sometimes  gained  and  be- 
stowed when  no  greater  intimacy  exists  than  the  semi- 
official relation  between  pastor  and  parishioner,  or  con- 
ference between  counsel  and  client,  or  the  consultation 
with  the  visiting  physician. 

But  the  nobleness  of  a  man's  nature,  his  qualities  of 
heart,  his  generosity,  his  benevolence,  his  consideration  of 
others,  his  charity  of  thought,  his  kindness,  his  patience, 
his  gentle  ways,  his  affections,  his  secret  ambitions,  his 
pride  of  family,  his  wit,  temper,  unselfishness,  habits,— 
all  are  best  observed  and  well  known  only  by  those  who 
live  under  the  same  roof,  who  sit  at  the  same  table,  who 
see  him  in  good  and  ill  health,  who  watch  him  when 
gratified  by  success  or  disappointed  by  defeat,  who  study 
his  moods  in  the  morning  and  by  night,  who  learn  his 
motives,  who  feel  his  sympathies,  listen  to  his  conversa- 
tion, know  his  sacrifices,  sound  the  depths  of  his  convic- 
tions and  the  sincerity  of  his  tones,  share  the  happiness 
of  his  fortunes  and  help  bear  the  trials  of  his  adversities. 

Of  Mr.  Hunt  it  must  be  said  that  in  his  private  life 
his  virtues  rounded  off  the  measure  of  his  greatness. 

Xo  unkind  word,  no  inconsiderate  expression  which 
could  hurt  the  feelings  of  those  about  him,  ever  escaped 
his  lips.  His  nature  was  very  simple,  and  in  the  gentle- 
ness of  his  disposition  he  associated  and  conversed  with 
the  humblest  pleasantly  and  kindly.  He  never  advanced 
any  idea  for  his  own  pleasure  until  he  had  considered  the 
comfort  of  others.  If  there  were  two  motives  to  be  attrib- 
uted to  the  conduct  of  men  or  women,  he  preferred  that 
which  was  founded  upon  charity  to  that  begotten  of 
malice.  Ills  clients  always  respected  him,  and  though  he 


BIOGRAPHICAL  SKETCH.  Ixxiii 

himself  often  forgot  the  labor  he  had  devoted  to  their 
interests,  they  never  did,  and  he  was  constantly  receiving 
handsome  presents  from  those  who  expressed  themselves 
as  glad  to  be  grateful  for  services  he  had  rendered. 

In  their  home  life  very  few  men  have  been  more  truly 
beloved.  His  temper  was  so  even  and  his  nature  so 
patient,  and  withal  he  was  so  hospitable  and  kind.  His 
sense  of  loyalty  to  blood  was  strong.  He  relied  upon  the 
counsel  of  his  brothers,  and  was  happiest  when  his  sisters 
and  other  members  of  his  family  were  immediately  about 
him.  To  his  wife  his  devotion  was  beautiful  and  con- 
stant. He  addressed  her  in  words  of  almost  poetic  en- 
dearment, and  when  writing  to  his  family  he  often  told 
of  his  love  for  her  companionship  and  his  pride  in  her 
character  in  language  most  fit  for  a  lover  to  use  in  describ- 
ing his  sweetheart. 

The  sympathies  of  his  heart  and  the  fellow-feeling 
within  him  are  well  described  by  the  following  extract 
from  an  argument  he  once  made  himself  where  he  touched 
upon  the  obligations  of  nature  and  morality  :  — 

"  The  domestic  relations  of  consanguinity,  especially  in 
regard  to  those  of  the  same  household,  have  always  been 
worthy  of  respect  and  cherishing.  The  relation  of  bro- 
thers is  the  natural  source  of  permanent  friendships  and 
intimacies,  which  soften  the  cares  and  contribute  to  the 
success  and  usefulness  of  life.  Their  recollections  are  a 
bond,  in  all  after-life,  of  sympathy,  interest,  and  affec- 
tion. The  endearments  of  childhood  ;  the  ruder  sports 
and  adventures  of  the  school ;  their  common  interest  in 
events  and  persons  ;  their  common  blessings  and  bereave- 
ments ;  the  noble  and  manly  counsels  of  a  father,  the 
wise  and  tender  lessons  of  a  mother,  which  each  can  recall 
to  the  other's  memory  ;  with  interests  involving  their 
mutual  happiness ;  protected  during  life  by  one  roof,  and 
whose  dust  is  to  be  mingled  in  the  sepulchre  of  a  common 


Ixxiv  BIOGRAPHICAL   SKETCH. 

soil,  — -  these  ties  of  blood  and  affection,  of  kind  and  tender 
memories  and  associations,  of  habitual  sympathies  endur- 
ing beyond  life,  give  a  charm  and  a  dignity  to  human  nature 
alike  pleasing  to  God  and  man,  and  reflecting  honor  upon 
those  who  faithfully  observe  them,  and  upon  those  to  whom 
filial  love  and  reverence  are  due  by  divine  commandment. 

"  Who  that  has  a  brother  can  fail  to  know  the  large 
resources  that  he  has  in  a  brother's  attachment  ?  The 
honor  or  shame  of  the  one  must  concern  the  other.  A 
brother  can  enter  fully  into  a  brother's  feelings,  and  his 
sympathy  and  confidence  be  more  than  those  of  other 
friends. 

"'  The  members  of  a  man's  own  family,  those  who  usu- 
ally live  in  the  same  house  with  him,  are  naturally  the 
objects  of  his  warmest  affections,  lie  is  more  habituated 
to  sympathize  with  them.  What  is  called  affection  is 
said  by  a  moral  philosopher  to  be  in  reality  nothing  but 
habitual  sympathy." 

Children  were  dear  to  him  and  attracted  his  attention. 
Upon  one  occasion,  Dr.  Hawks,1  the  distinguished  Epis- 
copalian clergyman,  saw  him  playing  marbles  with  a 
crowd  of  little  boys.  "  I  see,"  said  the  doctor,  coming  up 
to  Mr.  Hunt  on  the  street,  upon  discovering  the  distin- 
guished lawyer  about  to  shoot  a  marble,  "the  sports  of  the 
children  amuse  the  child.'' 

Like  most  great  men,  Mr.  Hunt  knew  his  power  and 
valued  it,  but  he  was  free  from  personal  vanity.  Notwith- 
standing the  repeated  requests  of  relations  ami  friends, 
he  never  sat  for  a  photograph  in  his  life. 

With  a  benevolent  and  strong  face,  he  was  a  striking- 
looking  man.  lie  wore  a  full  beard,  had  a  large  mouth, 

1  lYnncis  Lister  Hawks,  Doctor  of  Divinity  and  Doctor  of  Laws, 
longtime  ii  celebrated  pulpit  orator  in  (lie  United  States.  He  was 
a  native  of  North  Carolina.  He  was  for  some  time  rector  of  Christ 
Clnirch,  New  Orleans,  and  first  president  of  the  I  niversitv  of 
Louisiana. 


BIOGRAPHICAL   SKETCH.  Ixxv 

with  a  deep,  broad  forehead,  rather  large  nose,  and  par- 
tially bald  head. 

In  conversation  his  voice  was  soft  and  his  speech  slow, 
but  in  court  or  in  public  it  was  stern,  sonorous,  and  of 
tremendous  power. 

His  love  of  reading  prevented  his  being  remembered  as 
a  great  talker ;  yet  by  no  means  was  he  a  silent  man. 
But  he  generally  had  a  book  before  him,  even  at  the 
times  when  his  family  were  engaged  in  general  conversa- 
tion. When  he  became  interested  in  his  reading  it  ab- 
sorbed his  mind,  but  when  he  joined  in  the  discussion, 
from  his  richly  stocked  mind  came  "treasures  of  greatest 
value,"  which  he  let  fall  with  unassumed  and  charming 
modesty.  He  had  a  free  and  elevated  mind.  He  loved 
the  truth,  and  had  the  courage  to  pronounce  for  it.  Mr. 
Hunt  revered  the  character  of  General  Washington,  and 
at  one  time  wrote  a  short  life  of  him,  but  dropped  or  mis- 
laid the  manuscript,  and  never  heard  of  it  again. 

He  especially  admired  oratory.  Cicero  and  Demos- 
thenes, the  Earl  of  Chatham,  Daniel  Webster,  Edward 
Everett,  and  Rufus  Choate  were  the  examples  he  gen- 
erally held  up  to  young  men  as  eloquent,  fervent  cham- 
pions of  the  rights  of  the  others. 

Literature  was  his  recreation.  Shakespeare,  Goldsmith, 
Coleridge,  Bulwer,  Pope,  and  Scott  were  authors  lie  fre- 
quently quoted.  Dr.  Johnson  especially  delighted  him. 
But  his  reading  embraced  the  widest  extent,  and  made 
him  familiar  with  most  writers  worthy  of  study. 

The  classics,  as  he  thought,  were  the  highest  types  of 
pure  style.  To  him  the  Latin  and  Greek  statesmen  and 
philosophers  were  the  broadest  in  their  schools.  Quota- 
tions from  Horace,  Juvenal,  Virgil,  Socrates,  Homer,  and 
Plato  adorned  his  lectures,  his  arguments,  and  his  con- 
versation. 

For  years   he   was  a  communicant    of    the    Episcopal 


Ixxvi  BIOGRAPHICAL   SKETCH. 

Church,  and  a  fairly  regular  attendant.  The  Bible  was 
one  of  his  many  studies,  and  was  often  referred  to  in 
his  essays.  In  his  opinion  men  could  not  live  without 
religion,  nor  could  a  nation  prosper  without  reliance  upon 
a  superhuman  Providence. 

He  was  a  deep  student  of  Christian  philosophy,  and  oc- 
cupied himself  early  and  late  with  its  sublime  reflections. 

The  life  of  Kandell  Hunt  was  within  eventful  periods 
of  American  history.  The  journey  from  the  gateways  of 
disunion,  in  1832,  unto  the  threshold  of  a  celebration  of 
the  peace  of  1892  was  long  and  tiresome. 

In  the  glory  of  professional  fame  his  name  will  live 
always  as  an  American  lawyer,  seldom  equaled  in  learn- 
ing and  forensic  powers. 

If  as  a  statesman  his  career  seems  at  first  to  involve 
disappointment  in  its  immediate  results,  in  the  light  of 
events  it  deserves  to  be  recorded  as  that  of  a  wise  and 
strong  citizen,  constantly  contributing  to  the  improvement 
of  his  State,  even  where  he  failed  to  control  her  action, 
and  a  patriot,  whose  devotion  to  the  Union  was  the  only 
foundation  of  his  hopes  and  desires. 

Though  that  foundation  was  once  shaken,  the  base  was 
unimpaired  by  the  vibration. 

He  lived  to  happily  behold  his  country  and  his  State 
in  the  mutual  and  dependent  relations  which  sixty  years 
before  he  had  contended  must  exist  between  the  federal 
and  state  governments. 

As  a  citizen  and  a  man,  he  was  high-minded,  full  of 
courage,  and  just. 

The  sorrows  of  his  time,  the  regrets  suffered  in  his 
heart,  the  griefs  of  repeated  failures,  never  visibly  affected 
bis  uniformly  patient  character. 


SELECTED   ARGUMENTS,   LECTURES,  AND 
MISCELLANEOUS   PAPERS. 


A  COURT,  A  TEMPLE  OF  JUSTICE. 

[The  following  extract  from  an  argument  appeared  in  "  The 
New  Orleans  Book,"  published  in  1850  by  Robert  G.  Barnwell. 
It  contained  essays  by  the  most  distinguished  men  of  Louisiana. 
In  the  same  publication  were  articles  by  Francois  Xavier  Mar- 
tin, Edward  Livingston,  Etienne  Mazureau,  Judah  P.  Benjamin, 
S.  S.  Prentiss,  and  others.] 

EDUCATED  under  the  wise  and  liberal  institutions  of  a 
republic  of  laws,  I  look  upon  the  place  in  which  I  stand  as 
a  Temple  of  Justice,  not  as  a  theatre  for  a  vain  display 
of  powers  of  disputation  in  personal  rivalry.  I  regard 
this  Court,  not  as  a  weak  assembly  of  individuals,  who 
can  be  easily  operated  upon  and  misled  by  the  dictato- 
rial spirit  and  arrogant  airs  of  certain  orators,  who,  for- 
getting that  they  are  mere  advocates,  foolishly  imagine 
themselves  to  be,  and  would  make  others  believe  them  to 
be,  the  true  and  only  oracles  of  the  law,  but  as  an  august 
tribunal,  composed  of  men  of  good  sense,  firmness,  integ- 
rity, and  learning ;  who,  uninfluenced  by  any  passion  or 
prejudice,  examine  the  cpuestions  properly  submitted  to 
them,  in  a  calm  and  patient  spirit  of  investigation,  and, 
after  a  full  and  impartial  consideration,  decide  upon  them 
agreeably  to  the  principles  of  law  and  justice. 

True  liberty  is  a  practical  and  substantial   blessing. 


2  A   COURT,    A   TEMPLE   OF  JUSTICE. 

Its  existence  and  its  enjoyment  depend  upon  principles 
which  are  equally  important,  and  should  be  equally  dear 
to  every  man.  These  principles  are  founded  in  the  laws, 
and  are  recognized,  protected,  and  enforced  under  every 
social  condition  and  civilized  form  of  government.  They 
are  the  safeguards  and  guarantees  of  the  most  invaluable 
personal  rights,  of  personal  security,  personal  liberty,  and 
the  right  of  private  property.  In  the  case  now  about  to 
be  submitted,  the  last  only  of  these  rights  is  assailed. 
But  this  does  not  diminish  the  magnitude  or  interest  of 
the  cause  itself  ;  for  it  would  be  vain  to  speak  of  any 
other  right,  if  it  be  once  authoritatively  proclaimed  that 
the  acquisitions  of  labor  shall  no  longer  stimulate,  cheer, 
comfort,  and  enrich  industry,  but  shall  be  the  prize,  or 
rather  the  prey  of  unprincipled,  reckless,  and  rapacious 
power.  Such  a  proclamation  would  be  a  declaration  of 
war  against  humanity  and  civilization, — against  those 
principles  which  the  very  savages  hold  sacred,  as  essential 
to  the  peace,  safety,  and  harmony  of  society,  and  even  to 
the  support  of  individual  existence. 

The  secure  enjoyment  of  property,  under  the  supremacy 
of  the  laws,  while  it  incites  to  industry  and  promotes 
enterprise  in  all  the  departments  of  labor,  maintains  and 
strengthens  in  the  bosom  of  the  citizen  a  sense  of  personal 
independences  which  is  the  foundation  of  human  happiness, 
and  enables  him  at  once  to  discharge  his  obligations  to  his 
family  and  to  the  community  of  which  he  is  a  member. 
This  truth  is  so  simple,  so  self-evident,  that  it  is  univer- 
sally acknowledged,  and  even  forms  a  part  of  the  most 
despotic  code.  Napoleon  himself,  in  the  zenith  of  his 
power  and  glory,  would  not  have  dared  to  lay  violent 
and  sacrilegious  hands  upon  the  property  of  the  humblest 
subject  of  the  empire.  And  what  is  the  spectacle  that  is 
now  presented?  What  could  not  be  done  under  the  des- 
potism of  a  tyrant  is  audaciously  attempted  in  this  coun- 


A   COURT,   A  TEMPLE   OF   JUSTICE.  3 

try  of  republican  equality.  A  rich,  unscrupulous,  and 
greedy  corporation  has  insolently  appeared  before  this 
Court,  and  calls  upon  it  to  strip  private  individuals  of 
their  hard-earned  property,  the  title  to  which  is  not  only 
established  and  confirmed  by  every  principle  of  justice 
and  by  the  special  provisions  of  our  own  code,  but  by 
the  uniform  opinion  and  practice  of  the  whole  community, 
and  the  solemn  decisions  of  our  highest  Courts  under  the 
Spanish  laws. 

To  such  a  call  this  Court  will  not  fail  to  give  the  stern 
rebuke  of  insulted  justice.  The  jurisprudence  of  the 
State,  so  long  settled,  will  remain,  under  your  action,  as 
fixed  and  stable  as  the  eternal  principles  of  truth  and 
equity  which  form  its  basis,  and  the  faith  of  the  Court 
solemnly  pledged  in  its  judgments  will  continue  to  be  the 
surest  guarantee  for  the  secure  enjoyment  of  property 
purchased  upon  it.  No  licentious  or  disorganizing  doc- 
trine will  be  suffered  to  disturb  or  in  any  manner  to  af- 
fect the  sacredness  of  a  just  title  ;  and  the  poorest  citizen, 
while  he  betakes  himself  to  repose  under  his  humble 
shed,  will  reflect  with  pleasure  and  confidence  that  the 
fruits  of  his  honest  labors,  under  the  protection  of  the 
laws  of  his  country,  are  beyond  the  reach  of  the  most 
unprincipled  rapacity,  though  backed  by  wealth  and  acting 
under  the  hio-li-soundino-  name  of  a  COKPOHATION. 


AN    HISTORICAL    DISCOURSE    UPON    THE 
UNITED   STATES. 

[The  MS.  discovered  in  the  papers  of  Mr.  Hunt  leaves  this 
essay  incomplete,  but  as  far  as  it  goes  it  is  so  beautifully  written 
that  it  has  been  thought  best  to  publish  it.  It  was  composed 
in  the  later  years  of  his  life,  and  if  he  ever  finished  it  the  notes 
were  mislaid.] 

IT  was  a  common  opinion  with  ancient  writers  that  emi- 
gration and  the  emission  of  colonies  were  undertaken  in 
religious  obedience  to  the  commands  of  oracles  :  but  it  is 
probable  that  on  these  occasions  the  oracles  did  not  speak 
a  language  dissonant  from  the  views  and  purposes  of  the 
state.  But  of  the  motives  which  led  the  first  settlers 
of  New  England  to  a  voluntary  exile,  induced  them  to 
relinquish  their  native  country  and  to  seek  an  asylum  in 
the  then  unexplored  wilderness  of  America,  the  first  and 
principal,  no  doubt,  were  connected  with  religion.  They 
sought  to  enjoy  a  higher  degree  of  religious  freedom,  and 
what  they  esteemed  a  purer  form  of  religious  worship, 
than  was  allowed  to  their  choice  or  presented  to  their 
imitation  in  the  Old  World. 

Men  have  never  existed  without  some  religion, 
"  whether,"  as  is  said,  u  it  be  in  the  form  of  the  grossest 
fetish  religion,  adoring  bodies  which  do  not  even  repre- 
sent real  or  imagined  animal  beings,  or  polytheism,  or 
monotheism."  The  consciousness  of  our  dependence  and 
the  great  limitation  of  our  power,  fear  or  hope,  the  desire 
of  superior  aid  or  a  longing  for  support  and  comfort  in 
adversity,  which  every  man  feels  that  he  himself  or  his 


AN   HISTORICAL   DISCOURSE.  5 

fellow-men  cannot  afford,  has  invariably  led  man  to  ac- 
knowledge a  superior  agency  of  some  sort  or  other.  Man 
has  always  adored,  —  the  savage  and  the  sage. 

Pope  expresses  and  illustrates  this  with  philosophy  and 
with  instructive  simplicity  :  — 

Lo,  the  poor  Indian  !  whose  untutored  mind 

Sees  God  in  clouds,  or  hears  him  in  the  wind  ; 

His  soul  proud  science  never  taught  to  stray 

Far  as  the  solar  walk  or  milky  way  ; 

Yet  simple  nature  to  his  hope  has  given, 

Behind  the  cloud -topped  hill,  an  humbler  heaven  ; 

Some  safer  world  in  depth  of  woods  embraced, 

Some  happier  island  in  the  watery  waste, 

Where  slaves  once  more  their  native  land  behold, 

No  fiends  torment,  no  Christians  thirst  for  gold. 

To  be  content 's  his  natural  desire  ; 

He  asks  no  angel's  wing,  no  seraph's  fire ; 

But  thinks,  admitted  to  that  equal  sky, 

His  faithful  dog  shall  bear  him  company. 

Religion  considers  and  occupies  itself  with  the  relation 
of  man  to  his  supreme  Ruler.  God  willed  the  state  and 
the  relation  of  justice  among  men.  Society  is  interested, 
deeply  interested,  in  religion.  It  affords  two  powerful 
agents  of  morality,  namely  :  mental  communion  with  a 
Being  who  is  absolutely  pure  and  omniscient,  searches  the 
motives  in  the  deep  recesses  of  our  heart,  and  affords  sup- 
port to  those  who  seek  it  in  purity  with  him  ;  and,  on  the 
other  hand,  the  belief  in  the  immortality  of  the  soul. 
The  love  of  religious  liberty,  the  freedom  which  the  con- 
science demands  in  the  cause  of  religion  and  the  worship 
of  the  Deity,  and  which  men  feel  bound  by  their  hope  of 
salvation  to  contend  for,  prepares  the  mind  to  act  and  to 
suffer  almost  beyond  all  other  causes.  It  sometimes  gives 
an  impetus  so  irresistible  that  no  fetters  of  power  or  of 
opinion  can  withstand  it,  ...  and  is  able,  with  means 
apparently  most  inadequate,  to  shake  principalities  and 
powers. 


6  AN   HISTORICAL   DISCOURSE. 

It  is  certain,  said  Mr.  Webster,  that  although  many 
of  our  New  England  ancestors  were  republicans  in  prin- 
ciple, we  have  no  evidence  that  they  would  have  emi- 
grated, as  they  did,  from  their  own  native  country,  would 
have  become  wanderers  in  Europe,  and  finally  would  have 
undertaken  the  establishment  of  a  colony  here,  merely 
from  their  dislike  of  the  political  systems  of  Europe. 

They  fled  not  so  much  from  the  civil  government  as 
from  the  hierarchy  and  the  laws  which  enforced  con- 
formity to  the  church  establishment.  This  was  not  the 
flight  of  guilt :  it  was  religion  flying  from  causeless 
oppression,  it  was  conscience  attempting  to  escape  from 
arbitrary  rule. 

The  Mayflower  sought  our  shores  under  no  high- 
wrought  spirit  of  commercial  adventure,  no  love  of  gold, 
no  mixed  purpose,  warlike  or  hostile  to  any  human 
being.  Solemn  supplications  had  invoked  for  her  the 
blessings  of  Providence.  Civil  and  religious  liberty  were 
her  guides  ;  her  deck  was  the  altar  of  the  living  God. 
Fervent  prayers  on  bended  knees  mingled,  morning  and 
evening,  with  the  voices  of  ocean  and  the  sighing  of  the 
wind  in  her  shrouds.  Every  prosperous  breeze  awoke 
new  anthems  of  praise,  and  when  the  elements  were 
wrought  into  fury,  neither  the  tempest  nor  the  darkness 
and  howling  of  the  midnight  storm  ever  disturbed,  in  man 
or  woman,  the  settled  purpose  of  their  souls  to  undergo 
all,  and  to  do  all  that  patience,  resolution,  and  the  highest 
trust  in  God  could  enable  human  beings  to  suffer  or  to 
perform. 

When  Columbus,  after  landing  on  this  continent,  re- 
turned to  Europe  and  revealed  the  discovery  of  America, 
it  at  once  commanded  the  attention  of  all  the  maritime 
and  commercial  states  of  Europe.  Stimulated  by  love  of 
glory  and  hope  of  gain  and  dominion,  ambition  and 
greed  uniting,  many  of  them  early  embarked  in  adventu- 


AN   HISTORICAL   DISCOURSE.  7 

rous  enterprises  to  found  colonies,  or  to  search  for  the 
precious  metals,  or  to  exchange  products  of  the  Old  World 
for  whatever  was  valuable  or  attractive  in  the  New.  The 
master  minds  of  Europe  and  America  have  been  directed 
to  this  portion  of  worldly  annals,  —  the  history  and  pro- 
gress of  the  European  colonies  from  their  establishment 
in  America  to  the  time  when  they  instituted  governments 
of  their  own,  the  advance  of  knowledge  and  civilization 
in  the  Old  World  during  that  period  of  nearly  three  hun- 
dred years,  the  political  and  religious  events  which  then 
took  place,  the  advance  of  commerce  and  the  love  of  hu- 
man liberty,  —  and  have  drawn  therefrom  wise  principles 
of  government,  law,  religion,  politics.  The  present  dis- 
course will  not  examine  in  detail  the  events  of  the  period 
of  nearly  three  centuries.  Undoubtedly  the  religious 
controversies  of  the  period  affected  society  as  well  as 
religion.  They  changed  man  himself  in  his  modes  of 
thought,  his  consciousness  of  his  own  powers,  and  his 
desire  of  intellectual  attainments,  and  in  the  habits  of 
abstraction  and  reflection  and  the  consequent  attachment 
to  principles  and  laws.  The  spirit  of  commercial  and 
foreign  adventure,  therefore,  on  the  one  hand,  and  on  the 
other  the  assertion  and  maintenance  of  religious  liberty, 
strengthened  by  divisions  among  the  reformers  them- 
selves, and  this  love  of  religious  liberty  bringing  with  it, 
as  it  always  does,  an  ardent  devotion  to  the  principle 
of  civil  liberty  also,  were  the  powerful  influences  under 
which  character  was  formed,  and  men  were  trained  for 
the  great  work  of  introducing  English  civilization,  Eng- 
lish law,  and,  what  is  more  than  all,  Anglo-Saxon  blood 
into  the  wilderness  of  North  America.  Raleigh  and  his 
companions  may  be  considered  the  creatures  of  one  of  the 
causes  that  introduced  better  education,  greater  know- 
ledge, juster  notions  of  government,  and  sentiments  fa- 
vorable to  civil  liberty.  High-spirited,  full  of  the  love  of 


8  AN   HISTORICAL   DISCOURSE. 

personal  adventure,  excited  too,  in  some  degree,  by  the 
hopes  of  sudden  riches  from  the  discovery  of  mines  of  the 
precious  metals,  and  not  unwilling  to  diversify  the  labors 
of  settling  a  colony  with  occasionally  cruising  against  the 
Spaniards  in  the  AVest  Indian  seas,  they  crossed  and  re- 
crossed  the  ocean  with  a  frequency  which  surprises  us 
when  we  consider  the  state  of  navigation,  and  which 
evinces  a  most  daring  spirit.  The  other  cause  peopled 
New  England. 

There  was  a  marked  difference  of  principles  on  which 
the  colonization  of  the  tropical  region  and  of  the  whole  of 
South  America  by  Spain  and  Portugal  was  conducted, 
and  the  principles  011  which  the  colonies  in  the  northern 
part  of  the  continent  were  founded  and  governed.  Long 
before  the  first  permanent  English  settlement  had  been 
accomplished  in  what  became  the  United  States,  Spain 
pushed  her  settlements  in  America  with  vigor  and  eagei'- 
ness ;  conquered  Mexico,  Peru,  and  Chili,  and  extended 
her  power  over  other  territory.  The  precious  metals  were 
her  object ;  and  the  subjugated  natives  were  set  to  work 
for  their  conquerors  in  the  mines  of  silver  and  gold. 
Spain  is  described  descending  on  the  Xew  World  in  mili- 
tary garb,  with  military  commanders  and  rude  soldiers, 
robbing  and  destroying  the  native  race  by  authority  of 
her  king  for  the  aggrandizement  of  his  power  and  the  ex- 
tension of  his  prerogative.  She  swooped  on  South  Amer- 
ica like  a  vulture  on  its  prey.  Her  colonies,  from  their 
origin  to  their  end,  were  subject  to  the  sovereign  authority 
of  the  mother  country.  Their  government,  as  their  com- 
merce, was  a  strict  Spanish  monopoly  :  and  the  important 
posts  in  the  administration  of  the  colonies  were  filled  ex- 
clusively by  natives  of  old  Spain.  AVise,  benignant  prin- 
ciples of  government  may  be  found  in  the  fundamental 
laws  of  the  colonies.  ]>ut  the  kings  of  Spain  delegated 
their  powers  to  the  "  Council  of  the  Indies  :  ''  wise  laws 


AN  HISTORICAL   DISCOURSE. 

were  left  unexecuted,  and  oppression  and  extortion 
reigned.  Advance  in  a  colony  absolutely  guided  by  the 
mother  country,  notwithstanding  the  great  assistance  the 
latter  may  afford  to  the  former,  is  small  and  tardy  com- 
pared to  the  advance  of  a  community  allowed  to  manage 
its  own  concerns  unaided,  and  even  checked  at  times  by  a 
distant  administration.  This  is  signally  illustrated  in  the 
difference  of  principles  on  which  the  colonization  in  South 
America  by  Spain  and  Portugal  was  conducted,  and  the 
principles  on  which  the  colonies  on  the  northern  part  of 
the  continent  were  founded  and  governed.  Martin,  in 
his  history  of  Louisiana,  said,  "Judge  Marshall  has 
shown  this  ;  "  adding  somewhat  quaintly,  "  Sequar,  sequar : 
sed  hand  passibus  a3quis." 

Leaving  South  America  and  Mexico  to  Spain  and 
Portugal,  this  discourse  proceeds  to  France  and  England 
struggling  for  the  possession  of  North  America.  There 
was  something  different,  perhaps  characteristic,  in  the 
settlement  and  colonization  by  these  states.  The  English, 
disposed  to  maritime  adventure,  settled,  when  they  first 
set  foot  011  America,  on  the  seacoast,  in  a  rocky  strand 
and  a  sterile  soil ;  cleared  it  by  the  efforts  of  persevering 
industry ;  and,  after  the  lapse  of  a  century  and  a  half, 
surmounted  the  ridge  of  the  Alleghanies  and  spread 
themselves  over  the  alluvial  plains  of  the  Ohio  and  the 
Mississippi.  The  French  followed  from  the  first  the 
course  of  the  great  rivers,  and  established  stations  which, 
Alison  declares,  if  adequately  supported,  would  beyond 
all  question  have  given  them  the  empire  of  the  New 
'World.  Their  American  colonies,  planned  and  planted 
with  extraordinary  and  prophetic  sagacity,  rose  up  with 
great  rapidity,  and  early  assumed  a  formidable  aspect ; 
but  the  French,  though  amply  endowed  with  the  genius 
which  conceives,  had  not  the  perseverance  which  matures 
colonies.  They  thought  to  snatch  greatness  as  by  mili- 


10  AN   HISTORICAL   DISCOURSE. 

tary  conquest :  they  could  uot  submit  to  win  it  by  the  toil 
of  pacific  exertion.  They  did  not  spread  into  the  woods 
and  subdue  nature  by  the  enduring'  labor  of  free  men. 
So  wrote  the  British  historian. 

The  English  colonists  settled  in  thirteen  colonies,  dis- 
tinct and  separate,  contiguously  situated  along  the  margin 
of  the  shore  of  North  America,  but  chartered  by  adven- 
turers of  various  characters,  including  sectarians,  reli- 
gious and  political,  which  for  the  two  preceding  centuries 
had  agitated  and  divided  the  people  of  the  British 
islands,  and  with  them  were  intermingled  the  descendants 
of  Hollanders,  Swedes,  Germans,  and  French  fugitives 
from  the  Revocation  of  the  Edict  of  Nantes.  Enterprise, 
stubborn  endurance  of  privation,  unflinching  intrepidity 
in  facing  danger,  and  inflexible  adherence  to  conscientious 
principle  had  steeled  to  energetic  and  unyielding  hardi- 
hood the  characters  of  the  primitive  settlers  of  all  these 
colonies. 

Since  that  time  two  or  three  generations  of  men  had 
passed  away,  but  they  had  increased  and  multiplied  with 
unexampled  rapidity,  and  the  land  itself  had  been  the 
recent  theatre  of  a  ferocious  seven-years'  war  between  the 
two  most  powerful  and  most  civilized  nations  of  Europe, 
contending  for  the  possession  of  this  continent.  The 
victorious  combatant  had  been  Britain.  She  had  con 
quered  the  provinces  of  France :  she  had  expelled  her 
rival  totally  from  the  continent,  over  which,  bounding 
herself  by  the  Mississippi,  she  was  to  hold  divided  empire 
only  with  Spain :  she  had  acquired  undisputed  control 
over  the  Indian  tribes,  still  tenanting  the  forests  unex- 
plored by  the  European  man  ;  she  had  established  an 
uncontented  monopoly  of  the  commerce  of  all  her  colonies, 
who  had  loyally  and  valiantly  played  their  part.  The 
colonial  history  of  the  United  States  is  now  amply  written. 

In   the  bosoms  of  this  people  there  was  burning,  kin- 


AN  HISTORICAL   DISCOURSE.  11 

died  at  different  furnaces  of  affliction,  one  liberty,  says 
Adams.  The  quality,  the  leading-  feature  in  the  charac- 
ter of  the  American  colonial  people  in  the  age  of  the 
Revolution  was  what  Edmund  Burke,  the  profound  and 
eloquent  British  statesman  and  orator,  declared  in  Par- 
liament was  their  "fierce  spirit  of  liberty."  "The  love 
of  liberty  is  stronger  in  them  than  in  any  other  people 
on  the  face  of  the  earth."  "  It  is  the  united  voice  of 
America,"  wrote  gallant  and  glorious  Warren,  little  more 
than  six  months  before  he  fell  on  the  heights  of  Charles- 
town,  "  to  preserve  their  freedom,  or  lose  their  lives  in 
defense  of  it."  Rufus  Choate  of  Massachusetts  properly 
estimated  and  prized  this  trait  in  the  character  of  the 
people.  The  people  of  New  England,  at  the  beginning 
of  the  Revolutionary  War,  to  describe  them  in  a  word, 
were  the  Puritans  of  Old  England  as  they  existed  in  that 
country  in  the  first  half  of  the  seventeenth  century,  but 
changed,  —  somewhat  improved.  The  original  stock  was 
the  Puritan  character  of  the  age  of  Elizabeth,  of  James 
I.,  and  of  Charles  I.  For  a  hundred  years  they  were 
the  sole  depositaries  of  the  sacred  fire  of  liberty  in  Eng- 
land, after  it  had  gone  out  in  every  other  bosom.  When 
they  first  took  their  seats  in  the  House  of  Commons, 
they  found  it  the  cringing  and  ready  tool  of  the  throne  ; 
they  reanimated  it,  remodeled  it,  reasserted  its  privileges, 
restored  it  to  its  original  rank,  drew  back  to  it  the  old 
power  of  making  laws  and  imposing  taxes,  abridged  the 
tremendous  power  of  the  crown  and  defined  it.  And 
when  at  last  Charles  Stuart  resorted  to  arms  to  restore 
the  despotism  they  had  partially  overthrown,  they  met 
him  on  a  hundred  fields  of  battle,  and,  after  a  sharp  and 
long  struggle,  buried  crown,  despotism,  and  the  headless 
trunk  of  the  king  himself  beneath  the  foundations  of  a 
civil  and  religious  commonwealth.  It  was  just  when  Pu- 
ritanism had  attained  in  England  its  highest  point,  and 


12  AN   HISTORICAL   DISCOURSE. 

the  love  of  liberty  had  grown  to  be  the  master  passion 
that  guided  all  the  rest, — just  then  our  portion  of  its 
disciples  canie  hither.  The  Puritan  character  has  been 
justly  described  as  "  an  extraordinary  mental  and  moral 
phenomenon,  developed,  disciplined,  and  perfected  for  a 
particular  day  and  duty."  The  influences  which  com- 
bined to  form  it  from  the  general  mind  of  England ; 
which  set  this  sect  apart  from  all  the  rest  of  the  com- 
munity, and  stamped  upon  it  a  system  of  manners,  a 
style  of  dress  and  salutation  and  phraseology,  a  distinct, 
entire  scheme  of  opinions  upon  religion,  government, 
morality,  and  human  life,  marking  it  off  from  the 
crowds  about  it,  —  these  things  are  matters  of  popular 
history,  and  need  not  be  enumerated.  .  .  .  But  the  whole 
history  of  the  Puritans,  — not  only  of  those  who  remained 
in  England,  but  also  of  those  who  came  out  from  it,  and 
nobly  aided  in  founding  our  free  American  republican 
commonwealth,  —  their  religious  and  active  character,  their 
theological  doctrines,  their  notions  of  the  divine  govern- 
ment and  economy  and  of  the  place  they  filled  in  it, 
everything  about  them  was  out  of  the  ordinary  course  of 
life. 

Wonderful  cases  of  popular  delusion,  which,  infect- 
ing every  class  of  society  and  gaining  strength  from 
its  very  extravagance,  triumphing  over  human,  reason 
and  cruelly  sporting  with  human  life,  should  teach  man 
never  to  countenance  a  departure  from  that  moderation 
and  those  safe  and  sure  principles  of  moral  rectitude 
which  have  stood  the  test  of  time,  and  received  the 
approbation  of  the  wise  and  good  in  all  ages.  In  Great 
lii-itain  as  well  as  in  America,  the  opinion  had  long 
prevailed  that,  by  the  aid  of  malignant  spirits,  certain 
persons  possessed  supernatural  powers  which  were  usually 
exercised  in  the  mischievous  employment  of  tormenting 
others,  and  the  criminal  code  of  both  countries  was 


AN   HISTORICAL   DISCOURSE.  13 

disgraced  with  laws  for  the  punishment  of  witchcraft. 
Some  instances  had  occurred  in  New  England  of  putting 
this  sanguinary  law  in  force  ;  but  in  1692  this  weakness  was 
converted  into  frenzy,  and  its  destructive,  baneful  activity 
was  extended  to  persons  in  every  situation  of  life.  .  .  . 
Never,  says  Mr.  Hutchinson,  was  there  given  a  more 
melancholy  proof  of  the  degree  of  depravity  of  which  man 
is  capable  when  the  public  passions  countenance  crime. 
It  hath  been  said,  "  The  persecutions  of  the  Quakers, 
the  controversies  with  Roger  Williams  and  Mrs.  Hutch- 
inson, the  perpetual  synods  and  ecclesiastical  surveillance 
of  the  old  times,  —  a  great  deal  of  this  is  too  tedious  to 
be  read,  or  it  offends  and  alienates  you.  It  is  truth,  fact, 
but  it  is  just  what  you  do  not  want  to  know,  and  are  none 
the  wiser  for  knowing."  Yet  the  author  said,  more  truly 
and  justly,  "  History  is  full  of  instruction,  and  written  for 
instruction.  Especially  may  we  say  so  of  our  own.  Its 
moral  lessons  are  the  most  valuable." 

From  this  painful  notice  our  discourse  turns  to  the 
circumstances  by  which  the  spirit  of  liberty  which  brought 
these  colonists  hither  was  strengthened  and  reinforced, 
until  it  burst  forth  and  wrought  the  Revolution.  Let  it 
be  remembered  that  the  colonists  came  to  settle  in  America, 
to  seek  a  home  for  themselves  and  their  posterity,  —  a 
new  home,  to  become  dearer  and  dearer  as  time  should 
wear  away ;  not  a  mere  sojourn  or  place  of  temporary 
residence  for  the  acquisition  of  means  to  return  and  live 
in  a  better  society  and  better  place  of  enjoyment,  but  a 
home  of  permanent  abode,  a  shelter  from  persecution 
and  the  storms  of  life,  a  place  of  final  earthly  rest  and 
burial  for  themselves,  and  of  refuge,  comfort,  and  enjoy- 
ment for  their  children.  Local  attachments  and  sympa- 
thies would  spring  up,  the  ground  which  was  to  cover 
them  in  death  would  be  hallowed,  like  the  consciousness 
that  they  would  sleep,  dust  to  dust,  with  the  objects  of 


14  AN   HISTORICAL   DISCOURSE. 

their  affections.  Before  they  reached  the  shore,  they  had, 
on  board  the  Mayflower,  established  the  elements  of  a 
social  system.  At  the  moment  of  their  landing,  there- 
fore, they  possessed  institutions  of  religion.  The  morn- 
ing that  beamed  on  the  first  night  of  their  repose  saw 
them  already  at  home  in  their  country.  From  the  first 
there  was  a  repugnance  to  an  entire  submission  to  the 
control  of  British  legislation.  The  colonies  stood  upon 
their  charters,  which,  as  they  contended,  exempted  them 
from  the  ordinary  power  of  the  British  Parliament,  and 
authorized  them  to  conduct  their  own  concerns  by  their 
own  counsels.  The  more  distinguished  of  them  refused 
to  come  to  America,  unless  they  could  bring  charters 
providing  for  the  administration  of  their  affairs  in  this 
country.  They  saw  from  the  first  the  evils  of  being 
governed  in  the  New  World  by  a  power  in  the  Old. 
While  they  acknowledged  the  proper  general  power  of 
the  crown,  they  insisted  on  the  right  of  passing  local  laws 
and  of  local  administration.  They  utterly  resisted  the 
notion  that  they  were  to  be  ruled  by  the  mere  authority 
of  the  government  on  the  other  side  of  the  Atlantic,  and 
would  not  even  endure  that  their  own  charter  should  be 
established  there.  They  had  freedom  enough  to  teach 
them  its  value  from  the  contentions  and  trials  of  Fug- 
land,  and  to  love  it :  but  their  liberty  was  still  incomplete, 
and  it  was  constantly  in  danger  from  England.  "  From 
the  day  that  the  Pilgrims  on  board  the  Mayflower  at 
Plymouth,  before  they  landed,  drew  up  that  simple  but 
pregnant  form  of  democracy,  and  subscribed  their  names, 
and  came  out  a  colony  of  republicans,  to  the  battle  of 
Lexington,  there  were  not  ten  years  together  —  I  hardly 
exempt  the  Protectorate  of  Cromwell  —  in  which  some 
right,  some  great  and  sacred  right,  as  the  colonists  re- 
garded it,  was  not  assailed  or  menaced  by  the  government 
of  England,  in  one  form  or  another.''  From  the  first,  the 


AN  HISTORICAL   DISCOURSE.  15 

mother  country  complained  that  the  colonists  had  brought 
from  England,  or  had  found  here,  too  much  liberty,  — 
liberty  inconsistent  with  prerogatives  of  the  crown,  in- 
consistent with  supremacy  of  Parliament,  inconsistent 
with  the  immemorial  relations  of  all  colonies  to  the  coun- 
try they  sprang  from,  —  and  she  set  herself  to  abridge  it. 
They  answered,  with  great  submission,  that  they  did  not 
honestly  think  they  had  brought  or  had  found  much 
more  than  half  liberty  enough,  and  they  braced  them- 
selves to  keep  what  they  had,  and  obtain  more  when  they 
could ;  and  so,  with  one  kind  of  weapon  or  another,  on 
one  field  or  another,  on  one  class  of  questions  or  another, 
a  struggle  was  kept  up,  from  the  landing  at  Plymouth  to 
the  surrender  at  Yorktown.  It  was  all  one  single  strug- 
gle from  beginning  to  end,  —  parties,  objects,  principles, 
the  same,  —  one  long,  glorious,  triumphant  struggle  for 
liberty.  The  topics,  the  heads  of  dispute,  varied  from 
reign  to  reign ;  but  the  question  was  one,  —  Shall  the 
colonists  be  free,  or  shall  they  be  slaves  ?  Encroachments 
of  the  British  ministry  upon  their  chartered  rights,  the 
tyranny  of  the  mother  country  and  the  evils  under  which 
the  colonies  labored,  the  attempt  to  tax  the  people  of  the 
colonies  without  their  consent,  and  the  claim  of  a  riHit 

7  O 

to  do  so  without  limitation,  and  to  bind  them  by  her  stat- 
utes in  all  cases  whatsoever,  plainly  manifested  a  deter- 
mination to  reduce  the  colonies  to  a  condition  of  slavery 
too  grievous  to  be  endured,  — utterly  intolerable  to  such 
men  as  our  Fathers,  and  destructive  of  their  right  to 
property.  No  man  has  a  right  to  that  which  another  has 
a  right  to  take  from  him. 

From  the  commencement,  at  every  step  or  increase  of 
encroachment,  the  colonists,  in  their  fierce  love  of  liberty 
and  with  jealous  vigilance,  detected  the  movement  and 
approach  of  tyranny,  and  resisted  its  advance.  They 
augured  misgovernment  at  a  distance,  and  snuffed  tyranny 


16  AN   HISTORICAL   DISCOURSE. 

in  every  tainted  gale.     A  philosophic  statesman,  H.  S. 
Legare,  declares :  I  think  it  may  be  truly  said  that  the 
first  settlers  were,  of  all  men,  the  most  sensitive  and  the 
best  informed  upon  their  rights  and  liberties.     They  were 
heterogeueously  composed :    Huguenots   who,  having  ex- 
torted by  their  valor  a  short  interval  of  repose  from  per- 
secution, at  length  abjured  forever  their  beautiful  native 
land  :  not  to  search  for  gold  and  silver,  not  to  overrun  vast 
regions  with   lust  of  ambitious  dominion,  but  to  plunge 
into  the  depths  of  an  untrodden  wilderness,  because  in  its 
dreary  solitude  they  could  commune  with  God,  and  pour 
out  their  feelings  of  adoration,  which  they  could  not  utter 
in  the  land  of  their  birth  without  being  hunted  down  like 
wild  beasts.     They  were  the  austere  and  gloomy  Puritans 
of  England,  the  stern  and  fanatic  followers  of  Pym  and 
Hollis  and  llampden,  who  had  been  republicans  even  in 
Europe,  and  had  qititted  Europe  becaiise  it  was  unworthy 
of  a  republic,  —  those  men  to  whom  England  is  altogether 
indebted  for  the  democratic  part  of  her  constitution.     It 
was  these  heroes  and  tried  champions  of  religious  liberty, 
who  looked  upon  the  riches  and  honors  of  this  world  as 
dust  and   ashes,  in  comparison  with  the   principles  upon 
which  they  built  their  steadfast  faith,  who  not  only  loved 
liberty  as  something  desirable  in  itself  and  essential  to  the 
dignity  of  human  nature,  but  regarded  it  as  a  solemn  duty 
to  free  themselves  from  every  species  of  restraint  that  was 
incompatible  with  the   fullest  rights  of  conscience  :   who, 
possessing  all  that  devotedness  and  elevation  of  character 
so  natural  to  minds  nursed  in  the  habitual  contemplation 
of  such  subjects,  and  penetrated  with   their  majesty  and 
importance,  had   learned   u  to  fear  God  and  to  know  no 
other    fear,"  —  it  was   such   men    as    these,   together  with 
the  unfortunate,  the  persecuted,  the  adventurous,  the  bold, 
the   aspiring   of    all    climes    and    conditions,    congregated 
and  confounded  in  one  vast  asylum,  and  exercised,  by  the 


AN   HISTORICAL   DISCOURSE.  17 

hardships  incident  to  the  colonization  of  a  new  country, 
with  a  sort  of  Spartan  discipline  that  laid  the  foundation 
of  our  flourishing  commonwealths. 

Differences  were  traced  between  the  descendants  of  the 
early  colonists  of  Virginia  and  those  of  New  England, 
owing  to  the  different  influences  and  different  circum- 
stances under  which  the  respective  settlements  were  made  : 
but  the  habits,  sentiments,  and  objects  of  both  soon  be- 
came modified  by  their  condition  in  the  New  World  ;  and 
as  both  adopted  the  same  general  principles  of  English 
jurisprudence,  and  became  accustomed  to  the  authority  of 
representative  bodies,  these  differences  gradually  dimin- 
ished by  the  progress  of  time  and  the  influence  of  inter- 
course, and  the  necessity  of  some  degree  of  union  and 
cooperation  to  defend  themselves  against  the  savage 
tribes,  —  tending  to  inspire  mutual  respect  and  regard, 
thus  creating  among  these  colonies  a  pleasing  variety,  in 
the  midst  of  a  general  family  resemblance,  frequently 
and  classically  likened,  — 

Facies,  non  omnibus  una, 
Xec  diversa  tamen,  quatem  decet  esse  sorornm. 

Let  us  here  pause.  The  situation  of  the  colonies  at 
such  an  immense  distance  from  the  centre  of  the  British 
empire  must,  in  those  days  of  navigation,  have  weakened 
the  allurement  and  attraction  that  drew  to  it :  and  the 
peculiar  character  of  the  first  settlers  produced  an  inter- 
est and  a  feeling  in  the  colonies  different  from  those 
of  mere  Englishmen.  They  were  in  a  new  coxmtry,  in  a 
new  world,  a  new  home,  with  established  social  system, 
institutions  of  government  and  of  religion,  endeared  to 
them  as  a  place  of  refuge.  They  were  not  to  return  and 
abide  again  in  England.  Local  attachments  and  sympa- 
thies sprang  up  in  their  breasts,  friends  and  families  in 
relation  of  love  and  affection  ;  property  rewarded  their 


18  AN   HISTORICAL   DISCOURSE. 

industry  and  enterprise.  Children  were  born,  and  the 
hopes  of  future  generations  arose  in  their  new  habitation. 
The  seeond  generation  found  this  the  land  of  their  na- 
tivity, and  saw  they  were  bound  to  its  fortunes.  Their 
fathers'  graves  were  around  them  :  they  read  the  memori- 
als of  their  toils  and  labors,  and  rejoiced  in  the  inher- 
itance which  they  found  bequeathed  to  them.  The  soil 
answered  genially  to  its  culture  and  the  sea  presented  its 
way  to  commerce,  without  a  barrier.  Neither  they  nor 
their  children  were  again  to  till  the  soil  of  England  nor 
again  to  traverse  the  seas  which  surround  her.  Jjiit 
here  was  a  new  sea  now  open  to  their  enterprise,  and  a 
new  soil  which  had  not  failed  to  respond  gratefully  to  their 
laborious  industry.  Hardly  had  they  provided  shelter 
for  the  living  ere  they  were  summoned  to  erect  sepulchres 
for  the  dead.  The  ground  had  become  sacred  by  inclos- 
ing the  remains  of  some  companions  and  connections. 
Where  the  heart  has  laid  down  what  it  loves  most,  there 
it  is  desirous  of  laying  itself  down.  A  new  circle  of  en- 
gagements, interests,  and  affections  occupied  the  heart,  till 
an  undivided  sentiment  prevailed  that  "•  this  was  their 
country,  and  patriotism  became  local  to  America.''  A 
government  of  their  own,  and  existing  immediately  within 
their  limits,  was  absolutely  necessary  to  gratify  the  wishes 
and  secure  the  rights  and  liberty  of  the  colonies.  They 
brought  with  them  English  liberties, —  the  trial  by  jury, 
the  Habeas  Corpus  and  Magna  Charta,  the  principle  that 
if  any  power  can  tax  the  people  without  their  consent 
there  is  an  end  of  liberty.  They  brought  the  general 

v  •/  O  O 

principles  of  the  common  law  of  England,  and  adopted 
only  that  portion  applicable  to  their  condition.  ''  I 
deride,"'  wrote  Jefferson,  "•  the  ordinary  doctrine  that  we 
brought  with  us  from  England  the  common  law  rights. 
.  .  .  The  truth  is,  we  brought  witli  us  the  rights  of  men, 
expatriated  men.  "We  adopted  that  system  with  which 


AN   HISTORICAL   DISCOURSE.  19 

we  are  familiar,  to  be  altered  by  us  occasionally  and 
adapted  to  our  new  situation.  Political  institutions  were 
to  be  framed  anew,  and  our  fathers,  acting  boldly,  put  in 
force  principles  of  philosophy  and  freedom  which  had  no- 
where else  been  fully  admitted  in  practice." 

The  limits  of  this  discourse  do  not  allow  any  detailed 
examination  and  history  of  the  bloody  Indian  wars  which 
harassed  the  colonists,  nor  of  the  discouragements  in- 
herently belonging  to  all  forms  of  colonial  governments, 
nor  of  the  violations  by  the  mother  country  of  the  rights 
granted  to  the  colonists  in  express  charter,  nor  of  the 
numerous  encroachments,  illegal  threats  and  illegal  at- 
tempts to  tax  and  monopolize  the  trade  of  her  colonies, 
and  a  continued  effort  of  the  colonies  to  resist  or  evade 
that  monopoly.  The  character  of  the  primitive  English 
settlers  has  been  sufficiently  described.  Since  that  time 
two  or  three  generations  had  passed  away,  but  the  colo- 
nists had  increased  and  multiplied  with  unexampled  rapid- 
ity ;  and  the  land  itself  had  been  the  recent  theatre  of  a 
seven-vears'  war  between  France  and  Britain  contending; 

•'  O 

for  the  possession  of  this  continent. 

Here  we  pause.  From  our  discourse  we  have  looked 
back  to  the  settlement  of  the  English  colonies  in  North 
America ;  to  the  origin  of  their  union ;  to  the  con- 
flict of  war,  by  which  the  severance  from  the  mother 
country  and  the  release  from  the  thralldom  of  a  trans- 
atlantic monarch  were  effected  :  to  the  undaunted  and 
steadfast  maintenance  of  independence  through  that  fiery 
ordeal,  and  the  conclusion  of  peace  with  the  same  mon- 
arch whose  sovereignty  over  them  they  had  abjured,  "•  in 
obedience  to  the  laws  of  nature  and  of  nature's  God." 

The  Continental  Congress  constituted,  in  fact,  the  na- 
tional government  and  conducted  the  national  affairs  until 
near  the  close  of  the  Revolution,  and  extended  only  to  the 


20  AN   HISTORICAL   DISCOURSE. 

maintenance  of  the  public  liberties  of  all  the  States  dur- 
ing the  contest  with  Great  Britain.  It  would  naturally 
terminate  with  the  return  of  peace  and  the  accomplish- 
ment of  the  ends  of  the  revolutionary  contest.  How 
great  would  be  the  danger  of  the  separation  of  the  con- 
federated States  into  independent  communities,  acknow- 
ledging no  common  head  and  acting  upon  no  common 
system,  presented  itself  to  the  consideration  of  Congress. 
What  rivalries,  jealousies,  real  or  imaginary  wrongs,  di- 
versities of  local  interests  and  institutions,  would  soon 
sever  the  ties  of  a  common  attachment,  and  bring  on  a 
state  of  hostile  operations,  dangerous  to  the  peace  and 
subversive  of  their  permanent  interests !  These  and  other 
considerations  of  the  immediate  public  safety,  the  press- 
ing urgent  condition  of  affairs,  had  led  finally  to  the 
unanimous  approval  and  adoption  of  Articles  of  Confed- 
eration in  March,  1781,  which  thenceforth  became  the 
government. 

Our  discourse  will  now  pass,  by  an  easy  and  natural 
transition,  from  emigration  and  allegiance  to  the  subject 
of  u  Colonization  and  Colonists,"  but  will  first  state  anew 
what  hath  been  briefly  said  of  obedience  and  the  power  of 
the  State. 

Commanding  and  obeying  are  the  first  two  foundations 
of  all  human  society.  Society  without  laws  would  lose  its 
moral  character,  and  man  would  forfeit  his  destiny  as  a 
social  being  ;  and  therefore  man's  destiny  requires  obedi- 
ence to  laws.  Absolute  obedience  is  impossible,  and,  if  it 
were  possible,  immoral ;  for  man  cannot  divest  himself  of 
his  moral  individuality  and  responsibility.  It  is  a  maxim, 
Ad  imposxihiHa  nemo  oUigatw }  and  further  it  is  a 
maxim.  Ad  turbid-  nemo  obliyatur,  —  Xo  man  is  bound  to 
do  what  is  iniquitous.  Lieber  writes  :  When  Charles  IX. 
of  France,  or  his  mother,  issued  orders  to  slaughter  the 


AN   HISTORICAL   DISCOURSE.  21 

Protestants  in  the  provinces,  as  they  had  been  murdered 
in  Paris  on  the  eve  of  St.  Bartholomew,  several  governors 
and  other  officers  —  Sully  mentions  seven  —  declined  obe- 
dience. Viscount  Orthes,  or  Ortes,  commandant  at  Bay- 
onne,  wrote  back  :  "  Sire,  I  have  found  in  Bayonne  honest 
citizens  and  brave  soldiers  only,  but  not  one  executioner. 
They  and  myself  supplicate  your  Majesty  to  use  our  arms 
and  lives  in  possible  things."  He  was  right  to  call  this 
commanded  murder  an  impossible,  an  unfeasible  thing  for 
man,  an  honest  man,  to  do.  Obedience  is  necessary  in 
general ;  disobeying  or  non-compliance  is  the  exception. 

The  efficiency  of  the  land  and  naval  forces  of  a  nation 
depends  essentially  upon  unity,  quickness,  and  energy  of 
action.  At  all  times,  therefore,  stricter  obedience  has  been 
exacted  in  the  army  and  navy  than  in  any  other  branch. 
Armies  without  discipline  are  positive  evils  to  their  coun- 
try, and  discipline  consists  mainly  in  a  universal  habit  of 
obedience  throughout  the  whole  body  ;  not  that  discipline 
can  become  a  substitute  for  patriotism.  It  was  said  :  One 
Spartan,  who  glories  in  falling  for  his  country,  is  worth 
twenty  Medes,  who,  as  Herodotus  tells  us,  were  whipped 
into  the  fio-ht  bv  their  officers  against  the  Grecian  band  at 

O  *x  O 

Thermopylae.  Patriotism  in  an  army,  however,  will  be- 
come efficient  only  in  the  same  degree  as  it  is  coupled 
with  discipline.  Yet  even  in  the  army  and  navy  absolute 
obedience  is  not  and  cannot  be  demanded.  Disobedience 
to  commands  of  superiors  may  take  place,  because  the 
command  may  be  unlawful,  contrary  to  the  established 
law  of  the  land.  It  is  settled  in  the  United  States  that 
an  officer  of  the  forces  who  executes  the  unlawful  order 
remains  personally  answerable.  Before  he  disobeys,  he 
ought  to  be  thoroughly  convinced  that  the  command  is 
clearly  unlawful.  He  must  decide  it  at  his  own  peril  or 
responsibility.  This  is  also  the  law  in  England.  The 
British  and  American  articles  of  war  demand  obedience 


22  AN   HISTORICAL   DISCOURSE. 

to  all  lawful  commands.  All  obedience,  even  the  military 
oath  of  obedience,  is  conditional.  The  military  man  does 
not  become  an  unfeeling',  unthinking1,  absolute  instrument. 
If  the  orders  of  his  superiors  are  palpably  at  variance 
with  the  essential  objects  of  the  State  and  traitorous  to  his 
country,  he  is  bound  to  disobey. 

According  to  the  British  law,  the  monarch  is  com- 
mander-in-chief  of  all  the  forces,  and  disposer  of  peace 
and  war.  Admiral  Pennington  had  been  sent  by  Charles 
I.,  amid  the  acclamations  of  England,  to  give  effect  to  a 
generous  treaty  with  the  oppressed  and  besieged  Hugue- 
nots at  Kochelle  :  but  he  had  no  sooner  arrived  at  the 
place  of  his  destination  than  he  found  himself  under  se- 
cret orders  to  give  up  his  vessels  to  French  command 
under  a  u  murderous  warfare  against  British  honor  and 
the  Protestant  religion."  Here  was  a  flagrant  conspiracy 
of  Charles  and  Buckingham  against  the  State,  an  outra- 
geous abuse  of  power,  with  criminal  deception  :  and  Pen- 
nington was  right  not  to  obey,  and  to  draw  up  his  high- 
minded  protest.  The  sailors  were  right  who  wrote  what 
is  called  "  a  round  1'obin ''  against  the  service,  and  laid 
it  under  the  Bible  of  their  admiral,  whose  sentiments 
accorded  with  their  own. 

The  State  must  have  power  and  authority  for  its  gov- 
ernment. Justice  requires  that  every  man  shall  have  his 
due.  The  State,  through  its  government,  must  protect 
every  citizen  against  the  violation  of  his  rights  by  wrong- 
doers and  enemies,  and  must  maintain  its  jural  moral 
character  as  a  society  of  right.  The  State  lias,  it  is  one 
of  the  main  objects  of  the  State,  to  obtain  jointly  that 
which  is  necessary  for  society  and  cannot  be  obtained  by 
individual  exertion,  to  obtain  publicly  what  cannot  IK; 
obtained  privately,  as  we  have  seen.  Public  power  is 
founded  upon  confidence.  However  circumscribed,  defi- 
nite, and  carefully  limited  the  power  granted,  confidence 


AN   HISTORICAL   DISCOURSE.  23 

must  be  reposed  in  him  who  is  finally  to  carry  out  that 
law,  —  the  confidence  of  common  sense  and  moral  sense. 
But  this  confidence  may  be  abused.  Why  ?  Republicans 
complain  of  the  abuse  of  power  practiced  by  monarchs, 
their  ministers,  commanders :  and  yet  each  complainant 
carries  within  himself  the  germ  of  a  despot,  and  abuses 
power  proportionately  within  his  sphere  as  much  as  the 
others  in  theirs.  Each  party  that  is  out  complains  of  the 
abuse  of  power  in  that  which  is  in.  These  complaints  are 
not  all  mere  declamation. 

Where  power,  energy,  or  any  faculty  for  action  or 
activity  has  been  given,  there  likewise  exists  an  intense 
desire  to  exercise,  to  practice  and  apply  it.  It  is  its  very 
nature,  and  without  it  the  world  would  be  at  a  stand. 
Whatever  we  may  undertake  originally  by  way  of  inter- 
est, the  love  of  activity,  the  desire  to  leave  some  memo- 
rial of  one's  self,  to  produce  and  effect  something,  soon 
supersedes  it.  Thus  Lieber  in  his  book  on  political  ethics 
contends  :  "  What  impels  every  votary  of  science  to  pur- 
sue his  toilsome  paths  ?  Is  it  interest  ?  Is  it  utility  alone, 
or  chiefly  ?  Or  is  it  the  delight  which  the  human  mind 
feels  in  the  consciousness  of  activity?  Omnis  enim  scien- 
tia  et  admiratio  (fjuo?  est  semen  scientla^  per  se  jucunda 
est,  says  Bacon.  And  what  is  this  admiratio  but  the  de- 
light of  intense  activity  and  consciousness  of  the  power 
and  penetrating  or  combining  action  of  our  mind?  "  All 
absence  of  activity  pains  us. 

Few  who  have  power  are  willing  to  give  it  up,  whether 
in  the  people  or  the  monarch.  All  power,  however  law- 
ful, being  resisted,  the  first  feeling  in  those  intrusted  with 
it  is,  not  that  of  regret  at  this  resistance  on  account  of 
the  object  they  had  in  view,  but  of  offense  at  the  oppo- 
sition itself.  This  is  not  peculiar  to  one  set  of  men  or 
class  of  society,  but  without  exception  true  of  all.  Mo- 
narchic power  is  not  more  offended  at  resistance  than 


24  AN   HISTORICAL   DISCOURSE. 

democratic  or  parental  power.  Few  men  indeed  are  ever 
opposed  without  at  the  first  moment  having  the  feeling 
of  being  wronged  ;  and  this  extends  even  to  the  most  atro- 
cious criminal.  Whoever  wields  the  public  power  feels 
irritated  by  opposition,  be  it  ever  so  peaceful  or  loyal. 
Power,  therefore,  would  overcome  everything  in  its  way, 
if  not  modified,  or  if  not  generated  in  a  manner  which  in- 
sures the  least  possible  danger.  Power  imposes,  misleads, 
receives  everywhere  respect  by  its  own  character.  How- 
ever illegally  acquired,  the  great  action  of  power  obtains 
homage,  and  may  find  aids  and  abettors.  This  shows  the 
importance,  the  necessity  to  limit  and  prevent  the  execu- 
tive, the  depositary  of  this  vast  acting  and  imposing  power, 
from  luxuriant  rank  growth,  and  the  independence  of  the 
judiciary. 

This  portion  of  our  discourse  will  close  with  the  follow- 
ing remarks  011  the  eloquent  and  noble  epigram,  the  in- 
scription decreed  by  the  national  council  of  the  Amphic- 
tyons,  having  a  special  reference  to  the  Spartans  who  fell 
at  Thermopylae  with  their  king  in  obedience  to  their  laws. 
The  epigram  has  been  often  translated.  The  English  ver- 
sion of  it  by  Bowles  — 

"  Go  tell  the  Spartans,  thou  that  passest  l>v, 
That  here,  obedient  to  their  laws,  we  lie" 

has  been  pronounced  perfect.  '"  The  epigram  is  but  two 
lines,  and  all  Greece  for  centuries  had  them  by  heart. 
She  forgot  them,  and  Greece  was  living  Greece  no  more.'' 


THE  LOUISIANA  RETURNING  BOARD  OF  1876. 

[During  the  political  difficulties  which  followed  the  presi- 
dential election  of  November,  1876,  Mr.  Hunt  was  begged  to 
express  his  views  upon  the  law  governing  the  actioii  of  the 
Louisiana  Returning  Board.  He  took  no  active  part  in  the 
trial  of  Thomas  C.  Anderson  for  having  uttered  and  published 
certain  alleged  forged  and  counterfeited  public  records  or  state- 
ments of  votes  in  the  parish  of  Vernon,  but  wrote  a  history  of 
the  case,  together  with  his  own  views  upon  the  law  governing 
the  facts  brought  out  upon  the  trial.  A  statement  of  the  facts 
is  found  in  the  article  itself.] 

THOMAS  C.  AKDERSOX  was  tried  and  found  guilty  by 
the  verdict  of  a  jury  upon  the  charge  of  having  falsely  and 
feloniously  uttered  and  published  as  true  a  certain  altered, 
forged,  and  counterfeited  public  record,  to  wit,  the  con- 
solidated statement  of  votes  in  the  parish  of  Vernon  for 
presidential  electors  on  the  7th  November,  1876,  know- 
ing the  same  to  be  false,  altered,  forged,  and  counterfeited, 
with  intent  to  injure  and  defraud. 

The  information  was  based  011  the  following  section  of 
the  Revised  Statutes  of  Louisiana :  — 

"  Sect.  833.  "Whoever  shall  publish  as  true  any  false, 
altered,  forged,  or  counterfeited  public  record,  knowing 
the  same  to  be  false,  altered,  forged,  or  counterfeited, 
with  intent  to  injure  or  defraud  any  person  or  any  body 
politic  or  corporate,  shall,  on  conviction,  be  punished  by 
imprisonment  at  hard  labor,  not  less  than  two  nor  more 
than  fourteen  years/' 

Anderson,  having  been  convicted  and  recommended  to 


20  THE   LOUISIANA   RETURNING   BOARD. 

the  mercy  of  the  court,  was,  after  unsuccessful  motions 
for  a  new  trial  and  in  arrest  of  judgment,  sentenced  to 
two  years  at  hard  labor  in  the  penitentiary  of  the  State. 
The  sentence  was  the  least  punishment  the  law  allows. 
It  was  pronounced  25th  February,  1878,  and  on  the  same 
day  he  was  granted  an  appeal  to  the  Supreme  Court  of 
Louisiana,  returnable  within  ten  days,  under  a  statute  of 
the  19th  of  that  month. 

When  the  jurors  were  impaneled  upon  Anderson's 
trial,  they  were  to  try  not  only  the  fact  whether  he  uttered 
the  false  and  altered  writing,  but  also  whether  he  uttered 
and  published  it,  knowing  it  to  be  false  and  altered,  with 
a  fraudulent  design,  the  intent  to  deceive  and  defraud. 
The  information  sets  forth  not  only  the  particular  act 
committed,  but  also  the  motive  to  which  it  owed  its  origin 
and  received  its  complexion,  and  thus  specifies  the  crime  : 
It  charges  that  the  uttering  was  done  feloniously,  falsely, 
with  intent  to  injure  and  defraud.  The  design  is  inter- 
woven with  the  transaction.  Both  depend  upon  a  collected 
view  of  particular  circumstances  from  the  testimony,  from 
the  character  of  the  witnesses,  the  parties,  the  occasion. 
This  was  the  issue.  The  intention  constituted  the  crime. 
It  was  a  proper  subject  of  inquiry  by  the  jury.  It  is  a 
mental  fact ;  it  exists  in  the  mind  of  the  man  who  con- 
ceives it.  lie  may  conceal  it  from  others,  but  often  de- 
clares it  by  words  or  reveals  it  by  some  act.  When  the 
jury,  after  receiving  the  advice  and  assistance  of  the 
judge  as  to  the  law,  determined,  upon  the  circumstances  of 
the  case,  that  Anderson  was  guilty,  they  declared  upon  oath 
the  entire  charge  against  him  to  be  true  and  proved  be- 
yond a  doubt,  namely  :  first,  that  lie  uttered  and  published 
as  true  the  false,  altered,  forged,  and  counterfeited  public 
record  or  statement,  knowing  the  same  to  be  false  and 
altered  and  forged  :  and  second,  that  he  committed  the 
act  will  full  v  and  feloniously,  with  the  intent  to  defraud. 


THE   LOUISIANA   RETURNING   BOARD.  27 

The  verdict  and  the  sentence  of  the  criminal  court  settled 
forever  the  fact  that  Anderson  premeditately,  deliberately, 
and  corruptly  uttered  as  true  a  statement  which  he  knew 
to  be  false  and  altered  of  the  votes  of  a  large  portion  of 
the  people  of  Louisiana,  with  the  felonious  intent  to  de- 
fraud the  people  of  the  State,  and  so  of  the  whole  United 
States,  of  the  right  to  choose  their  own  chief  executive 
magistrate,  the  President  of  this  mighty  republic ! 

It  would  be  absurd  and  contrary  to  every  criminal 
prosecution  to  say  that  a  jury  cannot  judge  from  the  evi- 
dence of  the  motive  and  intention  of  the  accused.  Sup- 
pose a  jury  impaneled  to  try  one  accused  of  murder. 
They  may  find  him  guilty  of  the  fact  of  having  killed  the 
deceased,  but  not  of  having  killed  him  maliciously,  and 
may  find  him  guilty  of  manslaughter  only,  or  even  of  ex- 
cusable or  justifiable  homicide,  and  by  their  verdict  decide 
upon  the  law  and  fact.  Again,  suppose  a  jury  impan- 
eled 011  the  trial  of  one  charged  with  publishing  a  false 
and  malicious  libel :  would  a  judge  be  allowed  to  charge 
the  jury  that  the  only  question  for  them  to  consider  was 
whether  the  writing  in  the  information  was  published  by 
the  accused,  but  that  the  question  whether  the  writing  was 
a  libel  or  not  was  a  question  of  law  for  the  judge  to  de- 
termine, that  libel  or  no  libel  was  a  question  of  law  ex- 
clusively for  the  court  to  decide,  and  not  for  the  jury  ? 

The  true  and  just  rule  and  the  invariable  course  is  first 
to  give  a  legal  definition  of  the  offense,  and  then  to  leave 
it  to  the  jury  to  say  whether  the  circumstances  and  facts 
necessary  to  constitute  the  offense  have  been  proved  to 
their  satisfaction.  If  the  judge's  opinion  must  rule,  the 
trial  by  jury  would  be  useless.  He  might  by  a  too  latitu- 
dinariaii  construction  bring  the  fact  within  the  severity  of 
the  law,  or  by  a  too  strict  and  confined  construction  he 
might  exclude  it,  though  clearly  within  the  spirit  of  the 
law,  and  in  either  case  do  manifest  wrong.  A  mistake  of 


28  THE   LOUISIANA   RETURNING   BOARD. 

judgment  in  an  impartial  jury,  after  receiving  the  advice 
and  assistance  of  a  judge  upon  the  law,  is  less  to  be  ap- 
prehended than  the  possible  error  of  judgment  or  will  in 
the  judge,  who,  whatever  may  be  his  knowledge  or  probity, 
is  but  a  man;  and  therefore  the  State  of  Louisiana  hath 
wisely  ordained  that  her  judges  shall  aid  the  jury  in 
criminal  cases  in  obtaining  knowledge  of  the  law  appli- 
cable to  them,  but  shall  abstain  from  stating  the  evidence 
or  giving  any  opinion  on  it  to  influence  their  decision. 

Numerous  cases  have  been  decided  by  the  Supreme 
Court  of  the  State  in  conformity  with  this  law.  We  cite 
a  single  one  to  show  how  strictly  it  has  been  interpreted 
and  enforced.  It  is  the  case  of  Cammeyer  et  al.,  in 
8th  A.  312-31").  *'  The  defendants  were  indicted  and 
convicted  of  the  crime  of  larceny.  On  the  trial  of  the 
cause  in  the  district  court,  their  counsel  requested  the 
court  to  charge  the  jury  that  the  facts,  as  sworn  to,  did 
not  amount  in  law  to  larceny.  The  judge  refused  the 
charge,  but  gave  the  following  as  the  law  to  the  jury : 
'It  is  necessary,  in  order  to  constitute  larceny,  that  there 
should  be  a  felonious  taking,  and  that  maybe  properly  thus 
defined  :  the  taking  and  carrying  away  arc  felonious  when 
the  goods  are  taken  against  the  will  of  the  owner,  either 
in  his  absence  or  in  a  clandestine  manner,  or  where  pos- 
session is  obtained  by  force  or  surprise,  or  by  any  trick, 
device,  or  fraudulent  expedient,  the  owner  not  parting 
voluntarily  with  his  interest  in  the  goods,  and  where  the 
taker  intends  fraudulently  to  deprive  the  owner  of  his 
entire  interest  in  the  property  against  his  will.  Whether 
in  this  case  there  has  been  such  felonious  taking  the 
jury  must  determine  from  the  facts  proved.'  The  de- 
fendants rest  their  hope  of  reversing  the  finding  of  the 
jury  upon  the  distinction  between  obtaining  the  mere  pos- 
session oi'  the  thing  by  artifice  and  deceit,  and  the  ease 
where  the  owner  is  induced  l»v  fraudulent  representations 


THE   LOUISIANA  RETURNING   BOARD.  29 

to  part  both  with  the  property  and  the  possession  of  the 
thing.  The  jurisdiction  of  this  (the  Supreme)  Court  ex- 
tends to  criminal  cases  on  law  alone;  and  if  we  were  to 
examine  the  facts  on  which  the  jury  found  the  verdict, 
in  order  to  determine  whether  the  court  below  erred  in 
refusing'  to  charge  them  that  those  facts  did  not  consti- 
tute larceny,  we  would  certainly  be  exceeding  our  juris- 
diction, and  deciding  on  the  facts  as  well  as  the  law. 
We  have  attentively  considered  the  charge  which  the 
judge  did  give  the  jury,  and  are  of  opinion  that  it  is  a 
clear  and  correct  exposition  of  the  law." 

The  7th  November,  1876,  was  an  important  day  in 
the  history  of  our  common  country  and  of  the  State  of 
Louisiana.  It  was  the  day  fixed  for  the  appointment  of 
presidential  electors  by  the  several  States  of  the  Union. 
It  was  also  the  day  set  apart  by  the  people  of  Louisiana 
for  choosing  their  own  state  officers ;  and  elections  were 
accordingly  held.  There  was  a  majority  of  popular 
voters  throughout  the  entire  Union  in  favor  of  Democratic 
presidential  electors,  and  there  was  a  majority  in  Louisi- 
ana—  large  and  decisive  —  not  only  for  Democratic  elec- 
tors of  President,  but  also  for  Democratic  state  officers. 
The  Republican  party  had  conducted  their  election  cam- 
paign with  unscrupulous  activity.  They  used  the  entire 
power,  patronage,  and  influence  of  the  general  govern- 
ment, with  its  host  of  officers,  employees,  and  agents,  its 
countless  jobs  and  vast  expenditure  of  public  money,  to 
corrupt,  control,  and  debauch  the  virtue  and  action  of  the 
people.  None  were  deemed  too  high  to  be  tempted,  none 
too  low  to  be  purchased.  A  member  of  the  Cabinet  at 
the  seat  of  government  was  placed  at  the  head  of  their 
central  committee.  Agents  were  stationed  at  the  door  of 
pay  offices  to  exact  contributions  from  subordinate  offi- 
cials. The  whole  class  were  made  to  exert  and  exhaust 
their  power.  Even  the  army  of  the  republic  was  moved 


30  THE   LOUISIANA   RETURNING   BOARD. 

about  for  electioneering1  purposes.  All  ordinary  means 
of  success  were  applied  in  vain,  some  remarkably  bad, 
and  perhaps  even  criminal,  —  promises,  menaces,  intrigue, 
bribery  !  AVhat,  then,  was  to  be  done  ?  To  preserve 
the  party  from  ruin,  the  administration  of  the  govern- 
ment, its  offices,  power,  patronage,  must  be  retained, 
and  this  could  only  be  effected  by  stifling  the  voice  and 
defeating  the  will  of  the  people,  and  by  substituting  in 
their  place  a  false  and  altered  return  of  votes  cast  at  the 
presidential  election.  This  called  for  contrivance,  secrecy, 
concerted  action,  and  boldness,  surmounting  all  sense  of 
danger  and  of  shame.  It  was  a  last  resort. 

o 

Flt'L-tcre  si  nc'queo  Snperos,  Aclifroiita  movebo. 

Then,  in  A\rashiugton,  the  capital  of  the  country,  hon- 
ored with  the  name  dear  to  every  true  American,  was 
devised  in  Republican  conclave  the  scheme  to  procure, 
from  "state  officers  and  canvassers  of  election''  for  presi- 
dential electors,  false  and  fraudulent  certificates,  framed 
to  serve  as  a  pretext  for  a  false  count  of  the  electoral 
votes,  to  enable  the  president  of  the  Senate,  by  an  usur- 
pation of  power,  to  determine  all  questions  in  controversy, 
and  to  tin-eaten  the  enforcement  of  his  pretended  au- 
thority by  the  army  and  navy  of  the  United  States  :  the 
falsification  of  the  records  and  returns  of  election  to  be 
made,  prepared,  and  furnished  by  local  officers  and  agents, 
and  the  fraud  to  be  consummated  in  Washington. 

I'lidci  ft  liar  opprobria  no!>i> 
Et  potuisso  dici,  et  non  putui^st-  reiVlli. 

Among  the  victims  doomed  to  be  sacrificed  to  this 
fraud,  the  State  of  Louisiana  and  her  good  people  were 
conspicuous.  More  than  any  other  State  of  the  Union 
had  sin-  suffered  i'roni  the  oppression  and  spoliation  of  the 
dominant  faction,  after  the  baleful  attempt  at  secession, 
from  the  overthrow  of  her  government  and  the  military 


THE   LOUISIANA  RETURNING  BOARD.  31 

establishment  of  corrupt  rulers  over  her.  Long1,  too  long 
and  too  patiently,  had  she  endured  the  dark  reign  of 
terror,  of  usurpation  and  depravity,  whereof  the  gloom 
had  occasionally  —  for  a  moment,  and  only  for  a  moment 
—  been  relieved  by  a  popular  display  of  valor  and  regard 
for  constitutional  rights.  Time,  however,  was  bringing 
healing  on  its  wings.  The  citizens  of  the  State  were 
gradually,  steadily  acquiring  —  yea,  had  acquired,  to  the 
dismay  of  their  profligate  oppressors  and  despoilers  — 
power  to  check  their  career  and  to  defeat  the  faction. 
But  tyranny  was  cunning  grown.  Forewarned,  fore- 
armed. It  noted  from  afar  that  the  political  atmosphere 
was  troublous  and  a  storm  was  brewing,  and  foresaw  the 
necessity  of  guarding  and  perpetuating  itself  by  strong 
and  artful  means,  which  would  control  and  command  the 
return  of  votes  necessary  in  popular  elections,  and  vest  in 
subservient  officials  the  power  and  duty  of  appointing  to 
public  trust  and  office  none  but  its  own  tools  and  favor- 
ites, regardless  of  the  people's  will.  It  invented,  devised, 
and  constructed,  in  1870,  the  infernal  machine  ycleped 
the  "  Returning  Board,''  created  and  used  originally 
for  state  elections,  and  afterwards  altered  and  employed 
in  the  presidential  election  by  the  Washington  con- 
spiracy. 

The  invention,  the  description  of  its  component  parts, 
powers,  action,  etc.,  is  set  forth  in  an  act  of  the  General 
Assembly  of  the  State,  composed  of  seventy-one  sections, 
and  designated,  *'  An  act  to  maintain  the  freedom  and 
purity  of  elections,  and  to  enforce  Article  103  of  the  Con- 
stitution, which  ordains  that  the  right  of  free  suffrage  in 
elections  shall  be  supported  by  laws  prohibiting  all  undue 
influence  thereon  from  favor,  bribery,  tumult,  or  other 
improper  practice."  (Kev.  Statutes  La.)  The  act  cre- 
ated a  board  of  five  persons,  constituted  them  a  close 
corporation,  and  gave  them  perpetual  succession.  At 


32  THE   LOUISIANA   RETURNING   BOARD. 

first  one  Democrat  was  appointed  on  the  Board,  but  he 
was  soon  got  rid  of,  and  the  other  four  members,  belong- 
ing to  the  Republican  faction,  desiring  to  work  in  secret, 
refused  to  fill  his  place.  It  gave  the  Board  power  to 
canvass  and  compile  all  statements  of  votes  and  election 
returns  in  the  State,  and  to  pronounce  who  were  lawfully 
elected  ;  to  examine  and  determine  charges  and  questions 
of  fraud,  violence,  or  other  improper  practice  to  influence 
the  election,  and,  in  case  there  was  any  such  thing,  to 
exclude  all  the  votes  of  the  parish,  etc.,  and  thus  to 
condemn  and  punish  by  disfranchisement  thousands  of 
voters,  without  a  hearing,  for  the  offense,  real  or  sup- 
posed, of  others,  over  whom  they  had  no  control,  and  to 
make  a  mockery  of  the  people's  will. 

Judge  Black,  in  a  masterly  essay  on  the  Electoral  Con- 
spiracy, declared  the  Returning  Board  wi  a  machine  en- 
tirely new,  with  powers  never  before  given  to  any  tribunal 
in  any  State.  Its  object  was,  not  to  return,  but  to  sup- 
press the  votes  of  the  qualified  electors,  or  change  them  to 
suit  the  occasion."  It  was  no  sooner  called  into  existence 
than  it  entered  upon  its  nefarious  and  infamous  work. 
No  delay,  no  hesitation,  no  faltering.  On  and  on  it 
proceeded  in  its  ruthless  and  wicked  task  !  The  people 
of  the  State  at  every  election  expressed  their  condemna- 
tion, strong  and  indignant,  against  the  odious  and  corrupt 
faction  that  oppressed  and  ruled  over  them.  The  Board 
intercepted  the  election  returns,  kept  them  in  strict  and 
close  custody,  and  so  altered  them  as  to  make  a  majority 
the  other  way.  Kellogg  was  a  candidate  for  governor. 

K/  OO  O 

lie  was  defeated.  The  Board  certified  him  elected. 
u  The  certificate  was  so  glaringly  false  that  carpetbaggers 
themselves  would  not  help  to  install  him.  The  outraged 
people  rose  in  revolutionary  wrath,  and  inaugurated  Me- 
Knery,  the  man  who  had  been  really  elected.  But  (ien- 
eral  Grant  placed  and  retained  Kellogg  in  office  by  a 


THE   LOUISIANA  RETURNING   BOARD.  33 

shameful  military  usurpation.  The  Democrats  regularly 
elected  a  majority  of  the  legislature ;  as  regularly  the 
Returning  Board  certified  a  majority  of  their  seats  to 
carpetbaggers  or  scalawags,  or  negroes  not  chosen ;  and 
when  the  true  members  met  to  organize  for  business,  the 
army  was  punctually  in  hand  to  tumble  them  out  of  their 
hall."  ! 

Nothing  could  be  more  unjust,  unconstitutional,  oppres- 
sive, and  intolerable  to  freemen  than  the  condition  of 
Louisiana.  The  government  was  a  usurpation  and  des- 
potism. It  exercised,  through  the  Returning  Board,  ex- 
clusive control  over  elections ;  in  disregard  of  truth,  jus- 
tice, and  popular  action,  it  abolished  existing  courts,  and 
substituted  others,  with  election  provisions,  and  judges  ap- 
pointed by  the  governor  ;  it  enacted  criminal  punishment 
of  all  persons  attempting  to  fill  official  positions,  unless 
returned  by  the  Returning  Board ;  it  created  unjust, 
mischievous,  grievous,  and  odious  monopolies  and  corpo- 
rations, offices,  and  employments ;  involved  the  State,  al- 
ready overburdened  with  debts,  in  heavier  and  further 
obligations  ;  oppressed  the  people  with  ruinous  taxes  and 
exactions ;  converted  the  police  of  New  Orleans  into  an 
armed  brigade,  subject  to  the  command  of  the  governor ; 
and  vested  in  the  governor  of  the  State  a  degree  of  power 
scarcely  exercised  by  any  sovereign  in  the  world. 

This  was  the  condition  of  Louisiana  on  the  7th  Novem- 
ber, 1876,  the  day  on  which  her  people  were  to  choose 
a  governor,  members  of  her  legislature,  and  other  state 
officers,  and  to  vote  for  a  President  and  Vice-President  of 
the  United  States.  The  election  was  duly  held  on  the 
appointed  day.  All  the  offices  and  officers  of  election, 
the  registration  of  citizens  entitled  to  vote  in  the  several 
parishes,  every  poll  and  voting  precinct,  the  reception  or 
rejection  of  ballots  and  their  counting,  the  returns  and 

1  North  American  Review,  No.  257. 
3 


34  THE   LOUISIANA   RETURNING   BOARD. 

result  of  the  election,  —  all,  everything,  from  the  begin- 
ning1 to  the  close,  and  the  promulgation  of  the  result, 
to  be  performed,  supervised,  and  controlled  by  party  men, 
creatures  of  the  Republican  faction,  commissioners,  super- 
intendents, deputy-marshals,  and  attendant  soldiers  and 
police. 

The  elections  were  peaceable,  quiet,  undisturbed.  The 
vote  was  regularly  taken  and  properly  counted,  and  a  true 
record  made  of  it.  Returns  from  every  Democratic  par- 
ish were  sent  to  the  Returning  Board  without  a  single 
charge  or  protest  of  fraud,  violence,  or  intimidation. 
The  vote  was  large,  free,  unrestrained,  a  true  expression 
of  the  people's  judgment  and  choice.  If  the  state  gov- 
ernment was  a  constitutional  Democratic  -  Republican 
government,  if  the  people  had  the  appointing  power,  the 
(Tilden)  Democratic  presidential  electors  were  appointed. 
Not  only  would  the  people  have  had  a  governor,  legislature, 
and  state  officers  of  their  own  election,  but,  united  with 
the  people  of  the  other  States  of  the  Union,  a  President 
and  Vice-President  elected  by  the  free  voices  of  this  great 
nation.  The  people  of  Louisiana  gave  a  majority  of  7.039 
for  the  Tilden  electors  :  the  people  of  the  whole  United 
States  gave  a  majority  of  upwards  of  250,000.  From  every 
quarter  of  the  national  domain  electric  messengers  con- 
veyed the  news  to  the  conspirators  in  Washington.  The 
crisis  had  arrived.  The  people  had  condemned  the  party 
in  power,  and  had  chosen  Democratic  electors  to  cast 
their  votes  for  the  Democratic  candidates  for  President 
and  Vice-President  of  the  United  States.  But  it  remained 
for  the  officers,  ministers,  and  tribunals  of  the  election 
system  to  carry  into  effect  and  practical  operation  the 
action  of  the  people.  And  these  officers  in  several  States, 
and  (-specially  in  Louisiana,  were  all  of  the  condemned 
political  faction.  Success  or  defeat  of  the  right  of  self- 
government  in  the  people  —  of  the  right  to  choose  and 


THE   LOUISIANA   RETURNING  BOARD.  35 

change  their  officers  and  rulers,  to  dismiss  the  faithless 
and  corrupt,  and  to  put  in  their  place  the  honest,  capable, 
and  patriotic  —  was  made  to  depend  upon  the  right, 
true,  and  honest  count  of  the  electoral  vote  in  this  election. 
To  ascertain  this  the  Louisiana  vote  was  essential,  and  the 
action  of  the  Returning  Board  in  regard  to  it  called  for 
strict  and  searching  investigation.  It  was  well  known  to 
the  whole  country,  soon  after  the  election,  that  the  Tilden 
electors  had  received  a  majority  of  nearly  eight  thousand 
votes  at  the  presidential  election  in  this  State.  But  the 
character  of  the  Board,  its  action  on  previous  elections, 
its  present  unjustifiable  delays  and  protracted  meetings, 
its  secret  sessions  and  consultations,  its  violent  and  parti- 
san conduct,  unjust  and  unlawful  rulings,  whispered  ru- 
mors of  bribery  and  corrupt  offers,  etc.,  apprehensions  of 
perjury  and  falsified  returns,  filled  the  public  mind  with 
distrust  and  gloomy  foreboding.  Expert  of  wiles,  the 
hypocritical  offspring  of  dissembling  fraud,  shameless, 
audacious,  stimulated  by  former  successful  villainy  and 
supposed  favor  of  General  Grant,  the  Returning  Board 
in  this  State,  after  a  venal  attempt  to  obtain  money  from 
the  Democratic  party,1  consummated  the  "false  return" 
deemed  essential  to  the  election  of  Hayes  and  the  defeat 
of  the  people. 

How  was  this  nefarious  return,  this  false  count,  fabri- 
cated ?  The  Board  received,  in  conformity  with  the 
statutory  provisions  of  the  State,  returns  from  every  elec- 
tion poll  and  parish  in  the  State,  which  they  were  ordered 
to  canvass  and  compile,  to  ascertain  the  result  of  the 
election,  and  to  publish  and  proclaim  the  same.  They 
set  to  work,  not  truly  and  honestly  to  ascertain  the  result, 

1  Witness  the  conversation  of  Madison  J.  Wells,  president  of  the 
Board,  with  Mr.  D.  F.  Kenner  ;  and  the  statement  of  Mr.  Tilden  of 
his  refusal  to  ransom  from  the  Board  conclusive  documentary  evi- 
dence of  the  false  count. 


36  THE   LOUISIANA   RETURNING  BOARD. 

but,  as  heretofore  stated,  in  violation  of  sworn  official 
duty,  by  a  resort  to  manipulation,  destruction,  change, 
and  falsification,  to  bring1  out  a  result  absolutely  false  and 
fraudulent.  Some  returns  were  mutilated  and  essential 
parts  cut  oft' ;  some  were  entirely  suppressed  ;  some  were 
altered  by  a  double  process,  throwing  out  good  votes 
actually  cast,  and  putting  in  and  counting  spurious  votes 
known  not  to  have  been  actually  polled.  The  statute 
conferred  upon  them  certain  authority  in  regard  to  "  re- 
turns, accompanied  by  a  statement,  charge,  or  protest, 
attached  thereto  by  an  election  officer,  of  fraud,  vio- 
lence, riot,  etc.,  having  prevented  a  fair  election,  and  cor- 
roborated under  oath  by  three  respectable  electors  of  the 
parish."  There  was  no  such  charge,  protest,  or  state- 
ment, and,  of  course,  no  such  corroboration  by  affida- 
vits to  any  return  from  a  Democratic  parish.  How  then 
could  the  authority  be  exercised  ?  The  Board  met  the 
emergency  !  They  made  a  protest.  They  procured  affi- 
davits, fabricated,  it  is  said,  in  the  New  Orleans  custom- 
house, and  used  them  with  a  full  knowledge  that  they  were 
counterfeits.  It  was  proved,  as  we  state  anew,  that  the 
election  was  peaceable,  quiet,  undisturbed,  free  from  vio- 
lence. What  of  it  ?  The  Board  declared,  "  There  must 
have  been  intimidation,  from  the  comparative  smallness 
of  the  voters."  The  truth  is,  it  was  the  largest  vote  ever 
given  in  Louisiana,  and  larger,  in  proportion  to  the  whole 
population,  than  the  average  of  all  the  States  in  the 
Union. 

Judge  Black  truly  said  :  "It  is  unnecessary  to  mention 
with  particularity  all  the  infractions  of  law,  frauds, 
crimes,  and  felonies  committed  by  the  Board  and  the 
individuals  that  cooperated  with  it,  perjury,  subornation 
of  perjury,  falsification  and  spoliation  of  documents,  and 
forgery,  to  cheat  the  people  of  the  right  to  elect  their 
own  ruler.  There  is  hardly  any  species  of  the 


THE   LOUISIANA   RETURNING   BOARD.  37 

falsi  which  was  not  made  a  part  of  the  great  fraud  when 
the  defeated  electors  and  state  officers  of  Louisiana  were 
falsely  certified  as  chosen  by  the  people." 

It  was  the  object  of  the  fathers  of  our  country  to 
secure  for  themselves  and  their  posterity  a  government 
of  laws,  of  reason,  and  of  justice.  All  our  governments, 
state  and  federal,  are  popular  governments  on  the  basis 
of  representation,  as  nearly  equal  as  circumstances  allow. 
The  will  of  the  majority  fairly  expressed  has  the  force 
of  law.  Written  constitutions  founded  on  the  immediate 
authority  of  the  people,  regulating  and  restraining  all  the 
powers  of  government,  —  legislative,  executive,  judicial, 
—  form  the  supreme  sovereign  rule.  And  these  govern- 
ments and  these  principles  must  be  supported  by  general 
education  and  a  wide  diffusion  of  pure  morality,  public 
and  individual.  Without  virtue  in  the  people  a  just 
republican  government  cannot  subsist.  The  people,  then, 
being  the  source  of  all  political  power,  to  be  exercised 
through  representatives  elected  by  suffrage,  every  man 
by  voting  shares  in  the  sovereign  power,  and  performs 
his  duty  in  organizing  and  maintaining  the  government 
and  guiding  its  policy. 

Of  all  the  offices  in  the  United  States,  the  office  of 
President  is  the  most  important.  Kent  was  of  opinion 
that  the  election  of  a  President  of  the  United  States 
affects  so  many  interests,  addresses  itself  so  strongly  to 
popular  passions,  and  holds  out  such  powerful  tempta- 
tions to  ambition  that  it  becomes  a  trial  to  public  virtue 
and  hazardous  to  public  liberty,  and  that  if  we  continued 
to  elect  the  chief  magistrate  of  the  Union  with  integrity 
we  would  stamp  the  highest  value  on  our  national  char- 
acter and  republican  institutions.  Another  American 
patriot,  statesman,  and  jurist  says:  ''Liberty  is  more 
precious  than  gold.  In  the  judgment  of  the  virtuous 
and  wise  men  who  won  the  independence  and  built  up 


461500 


38  THE   LOUISIANA   RETURNING   BOARD. 

the  institutions  of  this  country,  the  privilege  of  choosing 
our  own  rulers  was  the  richest  part  of  the  great  inher- 
itance they  left  us.  With  a  full  price  in  blood  and 
treasure  they  bought  this  freedom  for  their  children,  and 
I  do  not  know  one  tolerably  decent  American  who  would 
sell  his  single  right  on  any  terms.  The  successful  scheme 
to  cheat  the  people  of  Louisiana  out  of  their  votes  for 
state  officers  and  presidential  electors  is  a  crime  of  the 
greatest  magnitude,  worse  even  than  a  conspiracy  to  steal 
any  amount  of  public  money." 

With  these  remarks  we  proceed  to  a  fuller  examination 
of  the  case  of  Anderson,  a  chief  actor  and  leader  in  the 
fraud  perpetrated  in  Louisiana.  On  the  27th  June,  1877, 
the  grand  inquest  of  the  State,  in  a  special  report,  rec- 
ommended that  Thomas  C.  Anderson  be  prosecuted  for 
forgery  and  altering  the  election  returns  of  the  parish 
of  Vernon  and  other  parishes  of  the  State.  On  the  5th 
July  following,  the  district  attorney  filed  an  information 
against  him  in  the  superior  criminal  court,  and  the 
court  issued  a  capias,  or  order  for  his  arrest.  He  fled 
from  the  jurisdiction  of  the  state  court,  sought  refuge 
within  the  walls  of  the  United  States  custom-house,  and 
called  upon  the  United  States  authorities  and  forces  to 
support  him  in  resisting  and  defying  the  authority  of  the 
State  that  he  had  wronged.  He  was  at  that  time  United 
States  collector  of  customs  at  the  port  of  New  Orleans, 
where  he  was  finally  arrested  in  his  office  by  the  sheriff, 
and  brought  before  the  state  tribunal  on  the  28th  day 
of  January,  1878.  Thereupon  he  moved  through  his 
counsel  to  transfer  the  case  to  a  court  of  the  United 
States.  The  motion  was  refused,  and  the  trial  of  the 
case  was  left  to  the  state  court,  lie  then  applied  for  a 
change  of  venue  to  have  the  case  removed  from  Xew 
Orleans  to  another  parish  in  the  State.  The  application 
was  rejected,  lie  next  objected  that  the  prosecution  was 


THE   LOUISIANA   RETURNING  BOARD.  39 

by  an  "  information  filed  by  the  State's  attorney,  and  not 
by  an  indictment  found  by  a  grand  jury."  The  objection 
was  overruled ;  the  proceeding  by  information  was  regu- 
lar, sanctioned  by  express  statute  and  settled  practice. 
He  next  "  objected  to  being  tried  alone,  and  insisted  that 
he  could  only  be  tried  jointly  with  Wells,  Casanave,  and 
Kenner,  the  other  members  of  the  Returning  Board." 
He  was  again  overruled.  He  then  "  excepted  to  the  venire 
and  the  jury  summoned  to  try  the  case,"  and  this  in  its 
turn  was  overruled.  A  bill  of  exceptions  to  these  rulings 
was  reserved  by  the  lawyers  of  Anderson,  and  the  court 
ordered  the  trial  to  proceed.  .  .  . 


CITIZENSHIP    AND    ALLEGIANCE. 

[In  1833,  a  judge  of  an  inferior  court  in  the  State  of  South 
Carolina  declined  to  admit  to  citizenship  one  George  Granstein, 
upon  the  ground  that  the  said  Granstein  declined  to  take  the 
oath  of  allegiance  to  South  Carolina.  Judge  Bay  certified  his 
action  to  the  last  court  of  appeals  of  the  State  of  South  Caro- 
lina, and  justified  his  refusal  to  admit  the  petitioner  hecause  he 
would  not  take  "  the  usual  and  customary  oath  of  allegiance  to 
the  State  of  South  Carolina,"  as  well  as  "  that  of  fidelity  to  the 
United  States."  The  case  attracted  much  attention  at  the  time. 
The  editorial  of  the  Charleston  ••  Courier  "  of  July  20.  1833,  con- 
tained the  following  reference  to  the  speech  of  Mr.  Hunt.  The 
speech  is  also  given  in  full.] 

WE  take  pleasure  in  gratifying  our  readers,  and  at  the 
same  time  enriching-  our  columns  this  morning,  with  the 
able  and  eloquent  argument  of  Randell  Hunt,  Esq.,  before 
the  last  court  of  appeals,  on  the  subject  of  citizenship 
and  allegiance.  AVe  feel  constrained,  however,  to  dissent 
from  some  of  his  views  on  the  latter  topic.  Allegiance, 
even  in  the  strictest  meaning  of  the  term,  is  not,  in  our 
opinion,  exclusively  due  to  the  United  States.  If  there 
is  any  one  point  clear  in  our  political  history,  it  is  that 
our  government  was  intended  to  be  an  admixture  of  the 
federal  national  forms,  and  that  it  was  adopted  with  that 
understanding  by  the  people  of  the  several  States,  the 
general  government  or  political  association  of  the  United 
States  acquiring  sovereignty  by  grant  within  specified 
limits,  and  the  States  retaining  the  residue.  AVherever 
sovereign! v  resides,  allegiance  is  due  as  a  matter  of 


CITIZENSHIP  AND   ALLEGIANCE.  41 

course,  and  it  belongs  as  properly  to  the  residuary  sov- 
ereignty of  the  States  as  to  the  delegated  sovereignty  of 
the  United  States,  each  having  an  exclusive  right  to  it 
within  its  legitimate  sphere.  It  is  very  certain  that  the 
government  of  the  United  States  is  a  limited  one,  that 
the  political  association  of  the  United  States  is  a  limited 
one, — in  the  language  of  Mr.  Jefferson,  "a  nation  for 
certain  purposes  only."  It  therefore  does  not  possess 
entire  sovereignty,  and  cannot  claim  entire  allegiance. 
The  States,  then,  retaining  residuary  sovereignty,  have  of 
course  a  rightful  claim  to  residuary  allegiance.  The  old 
feudal  notions  of  allegiance  and  fealty  have  no  application 
to  our  free  institutions.  The  allegiance  due  to  the  States, 
within  the  reserved  powers,  is  not  a  fealty  subordinate  to, 
but  wholly  independent  of  that  due  to  the  United  States 
within  the  granted  powers.  The  state  and  federal  govern- 
ments are  wholly  independent  of  each  other,  within  their 
appropriate  spheres,  and  there  is  no  relation  between 
them  analogous  to  that  between  the  lords  paramount  and 
the  mesne  lords  of  the  feudal  system.  In  fact,  allegiance, 
in  this  free  country,  simply  means  obedience  to  lawful 
authority.  Allegiance  to  the  United  States  consists  in 
fidelity  to  the  Constitution  and  Constitutional  laws  of  the 
United  States  ;  allegiance  to  the  several  States  consists 
in  fidelity  to  their  several  constitutions  and  constitutional 
laws,  provided  they  do  not  conflict  with  the  Constitution 
or  Constitutional  laws  of  the  United  States.  This  proviso, 
however,  does  not  impair  our  position,  for  the  fact  that  a 
provision  of  a  state  constitution  or  a  state  law  in  conflict 
with  the  federal  constitutions  or  laws  is  void  no  more 
impairs  our  allegiance  to  the  State  within  the  reserved 
powers  than  the  nullity  of  an  unconstitutional  federal 
law  impairs  our  allegiance  to  the  United  States  within 
the  granted  powers.  All  of  the  States  have  acted  on 
these  principles,  and  required  of  their  citizens  oaths  of 


42  CITIZENSHIP   AND   ALLEGIANCE. 

fidelity,  directly  to  themselves  or  to  their  constitutions 
and  laws. 

Mr.  Hunt  said  :  In  availing-  myself  of  the  opportunity, 
politely  offered  me  by  my  friend,  of  laying  before  the 
Court  the  grounds  on  which  the  petitioner  in  this  case 
moves  that  the  decision  of  the  judge  below  should  be  re- 
versed, I  cannot  but  regret  that  I  have  not  had  time  for 
as  ample  a  preparation  as  I  desired,  from  a  sense  of 
justice  to  myself  as  well  as  from  the  high  respect  which 
I  entertain  for  the  Court.  I  ask,  therefore,  an  indulgent 
hearing  from  your  honors,  while  I  submit  to  you  the 
views  which  have  presented  themselves  to  my  mind,  and 
which  appear  to  me  conclusive  011  the  subject. 

And  here,  said  Mr.  I  luiit,  on  the  very  threshold  of  the 
argument,  I  must  declare  myself  embarrassed  by  the 
simplicity  of  the  case.  If  there  were  anything  in  it 
obscure  or  involved,  I  might  endeavor  to  illustrate  and 
explain  it ;  if  anything  doubtful,  I  might  perhaps  prove 
it  by  argument.  But  the  case  is  so  clear,  so  simple,  so 
self-evident,  that  to  state  it  is  to  argue  it ;  or  rather  I 
should  say,  to  state  it  is  to  prove  it.  What  is  the  case  ? 

The  Constitution  of  the  United  States  declares,  art. 
2,  sec.  8,  p.  4 :  "  The  Congress  shall  have  power  to 
establish  a  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies,  throughout  the 
United  States/'  In  the  exercise  of  this  power.  Congress, 
on  the  14th  day  of  April,  1802,  passed  an  act,  entitled 
"an  act  to  establish  a  uniform  rule  of  naturalization,"  etc. 
The  act,  or  that  portion  of  it  applicable  to  this  case,  is  in 
the  following  words  :  '  — 

"  Sec.  1.  Any  alien,  being  a  free  white  person,  may  be 
admitted  to  become  a  citi/en  of  the  United  States,  or  any 
of  them,  on  the  following  conditions,  and  not  otherwise  : 

1  Kintrn,  17.">.  hio-crsoll's  Digest,  tit.  Aliens,  p.  -I,  "2  Story's 
Laws  U.  S. 


CITIZENSHIP  AND   ALLEGIANCE.  43 

"  First,  That  he  shall  have  declared  on  oath  or  affir- 
mation, before  the  supreme,  superior,  district,  or  circuit 
court  of  some  one  of  the  States  or  of  the  territorial  dis- 
tricts of  the  United  States,  or  a  circuit  or  district  court 
of  the  United  States,  three  years  at  least  before  his 
admission,  that  it  was  bonafide  his  intention  to  become  a 
citizen  of  the  United  States,  etc.  .  .  . 

"  Secondly,  That  he  shall  at  the  time  of  his  applica- 
tion to  be  admitted  declare  on  oath  or  affirmation,  before 
some  one  of  the  courts  aforesaid,  that  he  will  support  the 
Constitution  of  the  United  States,  and  that  he  doth  abso- 
lutely and  entirely  renounce  and  abjure  all  allegiance  and 
fidelity  to  every  foreign  prince,  potentate,  state,  or  sover- 
eignty, and  particularly  by  name  the  prince,  potentate, 
state,  or  sovereignty  whereof  he  was  before  a  citizen  or 
subject,  which  proceedings  shall  be  recorded  by  the  clerk 
of  the  court." 

The  petitioner,  George  Granstein,  according  to  the 
judge's  report,  "  appeared  to  be  entitled  to  be  admitted," 
and  offered  to  take  the  oath  prescribed  by  the  act  of 
Congress.  But  the  clerk  of  the  court  tendered  to  him  an 
additional  oath,  an  oath  of  allegiance  to  South  Carolina. 
This  he  declined  to  take.  "  Whereupon,"  says  Judge 
Bay,  "  I  refused  to  admit  him,  unless  he  took  the  iisual  and 
customary  oath  of  allegiance  to  the  State  of  Soiith  Caro- 
lina as  well  as  that  of  fidelity  to  the  United  States !  " 

The  case  then  comes  to  this  :  Congress,  exercising  a 
constitutional  power,  declares  that  any  alien,  being  a  free 
white  person,  may  be  admitted  a  citizen  of  the  United 
States,  or  any  of  them,  on  certain  conditions  and  accord- 
ing to  a  prescribed  rule.  Has  a  clerk  of  the  court  of 
sessions  and  common  pleas  for  Charleston  district  a 
right  to  prescribe  other  conditions  and  establish  another 
rule  ?  Has  he  a  right  to  interpolate  into  the  law  what- 
ever his  fancy  may  suggest  ?  Or  has  a  district  judge  of 


44  CITIZENSHIP  AND   ALLEGIANCE. 

the  State  of  South  Carolina  power  to  legislate  for  the 
Union  ?  Did  the  people  of  the  United  States  ever  dele- 
gate to  him  power  to  make  laws  on  the  subject  of  natu- 
ralization ?  It  is  a  wise  remark  that  Lord  Bacon  made, 
when  writing  of  judicature  :  "Judges  ought  to  remember 
that  their  office  is  jus  diccre,  and  not  jus  d<tre,  —  to  inter- 
pret law,  and  not  to  make  law  or  give  law  ;  else  will  they 
not  stick  to  add  and  alter,  and  to  pronounce  that  which 
they  do  not  find,  and  by  show  of  antiquity  to  introduce 
novelty." 

The  act  of  Congress  of  1802,  establishing  an  uniform 
rule  of  naturalization,  is  drawn  with  great  clearness  and 
precision.  It  repeals  all  previous  laws  on  that  subject. 
It  not  only  expresses  the  conditions  on  which  an  alien 
may  be  admitted  to  become  a  citizen,  but  it  says  "  he 
may  be  admitted  on  those  conditions,  and  not  otherwise." 
What  of  this  ?  argues  the  judge.  The  usage  of  the  sov- 
ereign State  of  South  Carolina  has  been  otherwise.  To 
require  aliens  on  being  admitted  citizens  to  take  an  oath 
of  allegiance  to  her  is  "  one  of  the  highest  prerogatives 
of  the  State,  and  the  longest  in  use.  I  could  not  there- 
fore permit  it  to  be  called  in  question  !  "  Upon  this 
point  I  will  content  myself  for  the  present  with  remark- 
ing, that  the  usage,  if  it  ever  prevailed,  is  illegal.  The 
Constitution  of  the  United  States,  and  the  laws  made  in 
pursuance  thereof,  are  supreme  over  state  laws  and  state 
constitutions. 

I  could,  may  it  please  the  Court,  rest  content  with  this 
statement,  and  leave  the  case  without  further  comment  to 
the  decision  of  your  honors.  Hut  the  judge  below  lias 
based  his  opinion  on  the  most  untenable  ground.  He  has 
assumed  positions  wholly  unsupported  by  law,  and  ad- 
vanced doctrines  directly  at  war  with  the  Constitution  of 
the  United  States.  It  becomes  necessary,  therefore,  to 
examine  these  doctrines,  lest,  having  the  sanction  of  ju- 


CITIZENSHIP  AND   ALLEGIANCE.  45 

dicial  authority,  they  may  produce  a  baleful  influence  on 
the  public  mind. 

The  judge,  in  his  report,  having  stated  that  he  refused 
to  admit  the  petitioner,  proceeds  thus  :  — 

11 '  The  grounds  upon  which  I  refused  to  admit  him 
were,  briefly,  the  following :  — 

"  First,  That  South  Carolina  was  a  sovereign  and 
independent  State,  and  had  an  unquestionable  right  to 
prescribe  the  terms  and  conditions  upon  which  she  would 
admit  aliens  to  the  rights  and  privileges  of  citizenship, 
from  the  day  she  assumed  her  sovereignty  to  the  present 
time,  by  the  law  of  nations  and  the  rights  of  all  civilized 
States. 

"  Secondly,  That  she  had  uniformly  exercised  this 
right  and  power  from  the  earliest  period  of  her  indepen- 
dence [even  before  the  independence  of  the  United 
States  was  declared]  ;  for  in  the  constitution  of  1776 
the  form  of  the  oath  is  prescribed  and  directed. 

"  And  in  the  constitution  of  19th  March,  1778,  the 
same  form  was  laid  down  and  directed,  after  the  indepen- 
dence of  the  United  States  was  declared. 

"  Also,  in  the  act  of  March,  1786,  to  confer  the  right 
of  citizenship,  the  oath  is  prescribed  to  be  administered  to 
aliens  on  being  admitted. 

"  Thirdly,  Because  it  was  one  of  the  highest  preroga- 
tives of  the  State,  and  the  longest  in  use.  I  could  not 
therefore  permit  it  to  be  called  in  question,  and  dismissed 
the  petition. 

E.   H.    BAY." 

Xow,  I  deny,  in  the  first  place,  that  the  State  of  South 
Carolina  has,  either  in  her  constitution  or  laws,  any  pro- 
vision requiring  an  alien,  before  he  can  be  admitted  to 
become  a  citizen,  to  take  an  oath  of  allegiance  to  the 
State  of  South  Carolina.  I  have  carefully  examined  the 


46  CITIZENSHIP   AND   ALLEGIANCE. 

constitutions  of  1776  and  1778,  and  compared  them  with 
the  present  state  constitution.  The  only  oaths  to  be 
found  in  them  are  oaths  of  office,1  and  are  superseded  by 
art.  4,  Con.  of  South  Carolina.  There  is  not  a  word  that 
ingenuity  can  torture  into  a  support  of  the  judge's  asser- 
tion. 

I  proceed,  therefore,  to  an  examination  of  the  laws  or 
statutes  of  South  Carolina,  in  which  we  are  told,  "  the 
oath  is  prescribed  to  be  administered  to  aliens  on  being 
admitted."  The  first  act  on  this  subject  is  an  act  of 
1C 96.  It  required  an  oath  of  allegiance  to  King  Wil- 
liam. This  was  altered  by  act  of  1704  to  an  oath  of 
allegiance  to  Queen  Anne.  These  acts  are  to  be  found 
in  Trott's  Laws.'2  It  is  unnecessary  to  dwell  upon  them  ; 
they  were  evidently  repealed  by  the  Declaration  of 
Independence.  The  act  of  1704  was  afterwards  ex- 
pressly repealed  by  the  act  of  20th  March,  1784,;;  enti- 
tled u  an  act  to  confer  the  rights  of  citizenship  on  aliens;'' 
and  this  act  of  1784  was  declared  to  be  repealed,  as  well 
as  that  of  1704,  by  the  act  of  22d  March,  1780. '  This 
act  denies  to  every  alien  the  rights  of  citizenship  in 
voting,  etc.,  "  until  he  shall  have  been  naturalized  by  a 
special  act  of  the  General  Assembly."'  On  the  27th  Feb- 
ruary, 1778, 5  an  act  was  passed,  prescribing  the  manner 
in  which  records  should  be  kept,  and  certificates  granted, 
of  the  admission  of  aliens  to  the  rights  of  citizenship. 
There  is  no  other  act  among  the  laws  of  South  Carolina 
on  the  subject  of  naturalization. 

On  the  2M  day  of  May,  1788,  the  people  of  South 
Carolina  ratified  the  Constitution  of  the  United  States, 
by  which  they  transferred  to  the  general  government 

1  Constitutions  of  So.  C;i.,  177<>  and  177S. 
-  Trull's  i,a\vs,  pp.  (i.'5,  and  10S,  ]<)<>. 

:i  (irhnkc'.s  I'ni).  L..  pp.  ;;:$'.),  ;$io. 

4  Gnnikr's  I'M!..    L.,  p.  112.  5  Griinke's  Pub.  L.,  p.   1115. 


CITIZENSHIP  AND   ALLEGIANCE.  47 

power  to  establish  a  uniform  rule  of  naturalization.  From 
that  time,  South  Carolina  has  never  interfered  with  the 
naturalization  of  aliens,  but  has  looked  for  her  guide  to 
the  rule  established  by  Congress. 

Then,  may  it  please  the  Court,  neither  the  constitu- 
tions nor  the  laws  cited  by  the  judge  support  his  posi- 
tion. The  truth  is,  South  Carolina  considered  the  power 
of  naturalization  vested  in  Congress  alone.  No  State  in 
this  Union  can  pass  laws  for  naturalizing  aliens.  The 
only  power  she  possesses  of  conferring  rights  on  aliens  is 
by  means  of  denization. 

Two  acts  of  South  Carolina  conferring  rights  on  aliens, 
passed  since  the  adoption  of  the  Constitution,  remain 
to  be  examined :  I  mean  the  act  of  18th  December, 
1799,1  and  that  of  December,  1807.2  They  relate  wholly 
to  denizens.  The  first  secures  to  them  the  same  protec- 
tion that  citizens  are  entitled  to,  but  prohibits  them  from 
voting  or  holding  any  office  of  profit  or  trust  in  this 
State.  The  second  looks  to  the  law  of  Congress,  and 
pays  it  a  proper  deference.  It  requires  every  "  alien,  pre- 
viously to  being  entitled  to  avail  him  or  herself  of  the 
benefits  of  that  act,  to  declare  his  or  her  intention  to 
become  a  citizen  of  the  United  States,  agreeably  to  the 
act  of  Congress  in  such  case  made  and  provided."  Such 
has  been  the  legislation  of  South  Carolina. 

It  appears,  therefore,  that  there  is  no  state  law  requir- 
ing an  alien,  upon  being  admitted  to  the  rights  of  citizen- 
ship, to  take  an  oath  of  allegiance  to  South  Carolina. 

The  distinction  which  I  have  made  between  the  power 
to  make  citizens  and  the  power  to  make  denizens  is  an 
old-established  and  well-recognized  real  distinction.  In 
Great  Britain,  the  king  can  grant  letters  patent  to  make 
a  denizen.  But  Parliament  alone  can  naturalize  an 

1  1  Faust's  Laws,  273. 

-  Acts  of  Assembly,  1807.     Pamphlet,  pp.  59,  60. 


48  CITIZENSHIP   AND   ALLEGIANCE. 

alien.  Blackstone  says,1  "  A  denizen  is  an  alien  born,  but 
who  has  obtained  c,x  donations  rcf/ls  letters  patent  to 
make  him  an  English  subject,  a  high  and  incommunicable 
branch  of  the  royal  prerogative."  He  then  enumerates 
the  privileges  and  disabilities  of  a  denizen,  and  comes 
to  the  subject  of  naturalization.2  "  Naturalization,"  says 
he,  "  cannot  be  performed  but  by  act  of  Parliament ;  for 
by  this  an  alien  is  put  in  exactly  the  same  state  as  if  he 
had  been  born  in  the  king's  liegeance  ;  except  only,"  etc. 
Judge  Tucker  also  supports  the  distinction.8  "  The 
common  law  has  affixed  such  distinct  and  appropriate 
ideas  to  the  terms  denization  and  naturalization  that 
they  cannot  be  confounded  together  or  mistaken  for  each 
other  in  any  legal  transaction  whatever.  They  are  so 
absolutely  distinct  in  their  natures  that  in  England  they 
cannot  both  be  given  by  the  same  power.  The  Federal 
Constitution  declares  that  Congress  shall  have  power  to 
establish  an  uniform  rule  of  naturalization  throughout 
the  United  States,  but  it  also  further  declares  that  the 
powers  not  delegated  by  the  Constitution  to  the  United 
States,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively  or  to  the  people.  The  power  of 
naturalization,  and  not  that  of  denization,  being  delegated 
to  Congress,  and  the  power  of  denization  not  being  pro- 
hibited to  the  States  by  the  Constitution,  that  power 
ought  not  to  be  considered  as  given  to  Congress,  but,  on 
the  contrary,  as  being  reserved  to  the  States.  And  as  the 
right  of  denization  did  not  make  a  citizen  of  an  alien,  but 
only  placed  him  in  a  middle  state  between  the  two,  giving 
him  local  privileges  only,  which  he  was  so  far  from  being 
entitled  to  carry  with  him  into  another  State  that  he  lost 
them  by  removing  from  the  State  giving  them,  the  incon- 
veniences which  might  result  from  the  indirect  coinmuni- 

o 

1    1  IJI;ick.  Coin.  i-h.  x.  374.  -  1   Black.  Com.  375. 

3  1  JJhiek.  Coin.  178,  257,  305. 


CITIZENSHIP   AND   ALLEGIANCE.  49 

cation  of  the  rights  of  naturalized  citizens,  by  different 
modes  of  naturalization  prevailing  in  the  several  States, 
could  not  be  apprehended.  It  might,  therefore,  have  been 
extremely  impolitic  in  the  States  to  have  surrendered  the 
right  of  denization  as  well  as  that  of  naturalization." 1 
Naturalization  in  Great  Britain,  we  have  seen,  can  be  per- 
formed only  by  Parliament.  This  it  does  by  virtue  of  its 
omnipotence  ;  Parliament,  according  to  the  theory  of  the 
British  Constitution,  having  the  sole  and  uncontrollable 
power.2 

The  power  of  naturalization  is  evidently  a  sovereign 
power.  Every  nation  is  bound  to  look  to  its  own  safety. 
It  has  a  right  to  determine  whether  it  will  admit  a 
stranger  into  its  society.  It  has  a  right  to  prescribe  the 
terms  on  which  he  shall  be  permitted  to  enjoy  the  benefit 
of  that  society.  Vattel  says  : 3  "A  nation,  or  the  sovereign 
who  represents  it,  may  grant  to  a  stranger  the  quality  of 
citizen,  by  admitting  him  into  the  body  of  the  political 
society.  This  is  called  naturalization."  When  the  Con- 
stitution of  the  United  States  was  framed,  which  made 
the  people  of  the  several  States,  to  a  certain  extent,  one 
people  or  nation,  and  clothed  the  general  government 
with  the  attributes  of  sovereignty,  it  seems,  then,  from 
the  nature  of  the  thing  itself,  that  the  power  of  granting 
to  a  stranger  the  quality  of  citizen,  by  admitting  him  into 
the  body  of  the  political  society,  should  have  been  trans- 
ferred to  the  national  legislature.  And  this  was  done,  as 
the  Court  perceives,  in  the  clause  of  the  Constitution  now 
under  consideration. 

Before  I  proceed  more  fully  to  argue  that  the  power  of 
naturalization  is  vested  exclusively  in  Congress,  I  beg 
leave  to  call  the  attention  of  the  Court  to  the  inference 

1  1  Black.  257. 

2  4  Coke's  Inst.  36.     1  Black.  Com.  162. 

3  Vattel,  Book  I.  ch.  xix.  sec.  214. 
4 


50  CITIZENSHIP   AND   ALLEGIANCE. 

drawn  from  the  rights  and  character  of  South  Carolina  as 
a  sovereign  State,  and  to  the  argument  which  will  prob- 
ably be  based  thereon.  It  will  be  contended  that  no 
man  can  be  a  citizen  of  the  United  States  before  he  is  a 
citizen  of  a  single  State  ;  that  every  citizen  of  a  State,  ex 
rei  necessitate,  owes  to  her  allegiance  ;  that  therefore  an 
alien  is  bound  to  take  an  oath  of  allegiance  to  a  State 
before  he  can  be  admitted  to  the  rights  of  citizenship  in 
the  United  States  ;  and  that  George  Granstein,  having 
refused  to  take  the  oath,  was  properly  rejected. 

Now,  what  I  maintain  to  be  the  true  doctrine  is  this : 
No  State  in  the  Union  has  a  right  to  require  an  oath  of 
allegiance  to  her,  because,  in  strictness  of  speech,  alle- 
giance is  not  due  to  her. 

What  is  allegiance  ?  The  term  is  derived  from  alligo 
(^<id  and  ligo),  to  tie,  or  bind  to.  Blackstone  defines  it  to 
be  1  "  the  tie  or  ligamen  which  binds  the  subject  to  the 
king,  in  return  for  that  protection  which  the  king 
affords  the  subject."  It  is,  as  Lord  Coke  describes  it, 
the  highest  and  greatest  obligation  of  duty  that  can  be. 
It  is  tlif  obligation  that  every  citizen  owes  to  support,  iu 
all  its  power  and  dignity,  the  government  which  protects 
him  in  the  enjoyment  of  his  rights.  And  this  protection 
must  be  of  a  national  character.  According  to  the  gen- 
eral understanding  of  mankind,  allegiance  can  be  predi- 
cated only  of  a  government  clothed  witli  the  attributes 
of  sovereignty,  and  recognized  at  home  and  abroad  as 
having  an  equal  and  proper  station  among  the  nations  of 
the  earth.  It  is  evident  that  in  this  sense,  our  allegiance 
is  due  immediately  and  directly  to  the  United  States. 

An  attempt  has  been  made  to  separate  the  government 
and  the  people.  It  is  said  that  all  sovereignty  resides  in 
the  people,  and  that  there  is  no  sovereignty  in  the  govern- 
ment, and  hence  no  allegiance  is  due  to  it.  We  must 
1  1  r>liK-k.  Com.  oGG. 


CITIZENSHIP  AND   ALLEGIANCE.  51 

not  suffer  ourselves  to  be  misled  by  subtle  distinctions. 
How  can  we  bear  true  allegiance  to  the  people,  except  by 
preserving,  protecting,  and  defending  their  government 
and  obeying  its  laws  ?  For  most  practical  purposes  the 
people  are  the  government,  and  the  government  is  the 
people.  There  is  nothing  magical  in  government.  It  is 
with  us,  as  it  should  be  everywhere,  a  popular  institution, 
deriving  its  strength  and  influence  from  the  affections  and 
support  of  those  by  whom  and  for  whom  it  was  made. 

The  late  metaphysical  disquisitions  on  the  nature  of 
sovereignty  are  not  calculated  to  produce  any  useful  re- 
sults, and  are  not  entitled  to  the  least  respect.  No 
government  in  this  country  has  unlimited  absolute  sov- 
ereignty ;  all  power  resides  in  the  people,  who  have  re- 
strained their  governments  by  written  laws.  And  this  is 
a  broad  distinction  between  our  governments  and  those  of 
Europe.  It  is  a  mistake,  however,  to  suppose  that  all 
European  governments  possess  absolute  sovereignty.  In 
fact,  absolute  sovereignty,  or  the  right  of  governing  the 
State  without  any  fixed  laws,  is,  by  the  experience  of  all 
ages,  proved  to  be  unfitted  for  human  happiness.1  Hence, 
most,  and  those  the  wisest  nations,  have  set  bounds  to  the 
powers  of  their  sovereigns.  Indeed,  it  is  argued  by  writers 
on  politic  law  that  a  people  cannot  divest  themselves  of 
this  sovereignty,  and  give  it  to  any  individual,  or  body  of 
individuals,  without  renouncing  their  own  lives  and  duty, 
so  that  all  sovereignty,  how  absolute  soever  it  may  be  sup- 
posed, hath  its  limits. 

Sovereignty  is  frequently  trusted  to  agents  by  the  peo- 
ple, who  may,  by  regulating  the  government  by  a  funda- 
mental law,  commit  the  exercise  of  the  different  parts  of 
the  supreme  power  or  sovereignty  to  different  persons  and 
bodies.'2  The  only  just  foundation  of  the  acquisition  of 

1  Burl.  Pol.  Law,  Part  I.  cli.  vii.  sec.  27. 
-  Burl.  p.  50,  and  Book  II.  cli.  iii.  Part  II. 


52  CITIZENSHIP   AND   ALLEGIANCE. 

sovereignty  is  the  consent  or  the  will  of  the  people. 
Vattel  says  :  "  Sovereignty  is  that  public  authority  which 
commands  in  civil  society,  and  orders  and  directs  what 
each  is  to  perform,  to  obtain  the  end  of  its  institution. 
This  authority  belonged  originally  and  essentially  to  the 
body  of  the  society,  who  trust  it  frequently  to  a  senate 
or  to  a  single  person."  l  This  public  authority,  thus  de- 
nominated "sovereignty,"  is  called  by  Judge  Tucker 
"the  government"  or  "administrative  authority  of  the 
State,"  which  he  defines  to  be  "  that  portion  only  of  the 
sovereignty  which  is  by  the  Constitution  entrusted  to  the 
public  functionaries  :  "  these,  he  adds,  "  are  the  agents  and 
servants  of  the  people."  According  to  these  authorities, 
then,  and  without  authority  it  is  sufficiently  manifest,  a 
government  may  possess  the  attributes  of  sovereignty. 

What  is  the  great  end  of  sovereignty?  It  is  the  tran- 
quillity and  happiness  of  the  State  as  well  within  itself 
as  with  respect  to  its  interests  abroad,  and  these  are  the 
essential  parts  of  sovereignty:2  (1.)  A  legislative  power. 
(2.)  An  executive  power.  (3.)  A  judicial  power.  (4.)  The 
power  to  make  war  and  peace,  and  raise  troops.  (f>.)  The 
power  to  make  treaties  and  alliances.  (0.)  The  power  to 
appoint  ambassadors  and  other  ministers.  (  7. )  The  power 
to  tax.  Burlamaqui  and  other  political  writers  add 
another  power,  that  of  determining  what  doctrines  shall 
be  publicly  taught.  But  in  our  country  the  right  of  free 
decision  is  almost  universally  acknowledged.  These  essen- 
tial parts  of  sovereignty  are  sometimes  called  immanent 
and  transeunt  rights,  and  all  these  must  concentre  and 
unite  in  a  government  to  make  it  sovereign.  Xo  one  will 
pretend  that  the  several  States  in  this  Union  have  these 
powers.  The  people  have  transferred  them  to  the  gen- 
eral government,  to  which  our  national  sovereignty  is 

1    Vattol,  Book  I.  cli.  iv. 

-  Jlcinuc.  Book  II.  sec.  133,  131,  135.     Burl.  cli.  viii. 


CITIZENSHIP  AND   ALLEGIANCE.  53 

entrusted,  and  to  which  we  must  look  for  national  pro- 
tection. That  government  has  power  over  the  purse  and 
power  over  the  sword.  It  has  power  to  declare  war  and 
make  peace,  to  levy  taxes  and  raise  troops,  to  form 
treaties  and  appoint  ambassadors  and  other  ministers.  It 
has,  under  certain  wise  and  salutary  checks,  power  to 
make  laws,  to  expound  them  and  enforce  them.  The 
general  government  is,  then,  clothed  with  the  attributes 
of  sovereignty.  True,  the  States  have  power  to  legislate 
concerning  matters  of  an  internal  or  local  nature  ;  but 
this  does  not  interfere  with  the  power  of  the  general  gov- 
ernment. Nor  does  it  affect  the  question  of  allegiance. 
Allegiance  is  due  to  the  paramount,  and  riot  to  the  subor- 
dinate authority,  —  to  the  United  States,  whose  Consti- 
tution and  whose  laws  made  in  pursuance  thereof  are 
declared  superior  to  all  state  laws  and  state  constitu- 
tions.1 I  repeat,  then,  that  our  allegiance  is  due  imme- 
diately and  directly  to  the  United  States ;  it  is  single 
and  undivided,  and  of  paramount  obligation.  There  is 
and  there  can  be  no  such  thing  as  a  double  or  contradic- 
tory allegiance.  And  it  is  only  by  a  looseness  of  speech, 
calculated  to  produce  in  times  of  excitement  the  most 
dangerous  consequences,  that  it  has  ever  been  applied  to 
matters  of  a  merely  local  or  domestic  nature. 

Under  the  feudal  system,  allegiance  was  nsed  only  to 
express  the  obligation  due  to  the  sovereign  ;  the  inferior 
duty  that  a  vassal  owed  his  lord  was  known  by  the  appro- 
priate term  fealty. 

Chancellor  Kent  speaks,  in  the  second  volume  of  his 
Commentaries,  of  primary  or  paramount  allegiance  and 
of  secondary  allegiance.  The  expression  is  inelegant  and 
uiiphilosophical ;  allegiance  is  of  itself  of  paramount  obli- 
gation. 

In  this  view,  it  is  evident  that,  in  strictness  of  speech, 
1  Cons.  U.  S.  art.  G,  sec.  2. 


54  CITIZENSHIP  AND   ALLEGIANCE. 

our  allegiance  is  clue  to  the  United  States  only.  I  allow 
that  there  is  an  inferior  or  subordinate  fealty  due  to  the 
State,  but  this  cannot  interfere  with  our  primary  and  par- 
amount obligations  to  the  United  States. 

I  now  beg  leave  to  bring  to  the  attention  of  the  Court 
a  brief  reference  to  our  civil  and  political  history,  in 
order  to  illustrate  and  strengthen  the  view  of  allegiance 
here  presented.  Previous  to  the  adoption  of  the  Articles 
of  Confederation,  Congress  was  a  mere  advisory  body. 
The  colonies  wore  engaged  in  a  common  cause,  and  were 
practically  one  people  or  nation.  They  were  represented 
by  a  common  body,  or  Congress.  That  Congress,  having 
passed  the  resolution  declaring  the  Americans  absolved 
from  all  allegiance  to  the  British  government,  very  prop- 
erly deemed  an  adherence  to  the  king  of  Great  Britain, 
or  other  enemy  of  the  colonies,  an  attack  on  the  common 
cause.  They,  therefore,  on  the  24th  of  June,  declared 
that l  "  all  persons,  members  of,  or  owing  allegiance  to, 
any  of  the  United  Colonies,  who  should  levy  war  against 
any  of  the  said  colonies,  within  the  same,  were  guilty  of 
treason  against  such  colony,''  and  recommended  to  the 
legislatures  of  the  several  colonies  to  pass  laws  for  the 
punishment  of  such  treasons.  In  pursuance  of  this  recom- 
mendation, the  States  passed  the  laws  requisite  for  self-pro- 
tection, and  inflicted  the  punishment  of  death  on  such  as 
were  found  guilty  of  treason. 

Under  the  Articles  of  Confederation,  the  laws  on  the 
subject  of  treason  were  undisturbed.  Treason  was  still  a 
common  offense  as  defined  by  Congress,  but  yet  punish- 
able by  the  several  States,  in  consequence  of  the  non-ex- 
istence of  a  government  acting  directly  upon  individuals. 
During  all  this  time,  however,  we  continued  practically 
one  people  or  nation,  engaged  in  a  common  cause,  having 
one  regular  body  of  troops,  governed  by  united  counsels, 

1    1    Pitkin's  Civ.  mid  Pol.  Hist,  of  the  U.  S.  ;571,  .'JTli. 


CITIZENSHIP  AND   ALLEGIANCE.  55 

aiid  assisted  by  quotas  paid  for  the  common  purpose  of 
common  defense. 

The  Articles  of  Confederation  were  found  inadequate 
to  national  purposes,  and  our  present  Constitution  was 
built  upon  their  ruins.  By  this  the  whole  frame  of  our 
government  was  remodeled.  It  is  a  constitution  of  gov- 
ernment, with  powers  to  execute  itself.  The  govern- 
ment has  power  to  tax  individuals,  and  to  demand  from 
them  military  services.  It  has  power  to  punish  them  for 
crimes  committed  against  itself.  It  is  entrusted,  we  have 
seen,  with  sovereign  power.  Its  laws  operate  immediately 
and  directly  upon  the  citizen,  and  thus  create  an  immedi- 
ate and  direct  connection  between  the  citizen  and  the  gen- 
eral government. 

Under  these  circumstances,  it  was  found  necessary  by 
the  framers  of  the  Constitution  to  make  some  new  pro- 
vision on  the  subject  of  treason.  Accordingly,  they  de- 
clared that  "  treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in  adhering 
to  their  enemies,  giving  them  aid  and  comfort,"  and  gave 
Congress  power  to  declare  the  punishment  of  treason. 
Now,  it  must  be  borne  in  mind  that  treason  is  the  highest 
breach  of  allegiance.  Whether  we  regard,  then,  the  nature 
of  allegiance,  the  sense  in  which  it  is  understood  by  all 
civilized  nations,  the  civil  and  political  history  of  our 
country  as  explanatory  of  the  Constitution,  or  the  Con- 
stitution as  speaking  distinctly  for  itself,  we  are  forced 
to  the  conclusion  that  our  allegiance  is  due  immediately 
and  directly  to  the  United  States. 

And  this  conclusion  is  strengthened  by  the  eighth  sec- 
tion, art.  1,  Cons.  U.  S.,  which  conferred  on  Congress  the 
"  power  to  establish  an  uniform  rule  of  naturalization 
throughout  the  United  States."  This  power  is  exclusive. 
Its  purpose *  was  to  deprive  the  States  individually  of 
1  1  Kent's  Com.  sec.  19. 


56  CITIZENSHIP   AND   ALLEGIANCE. 

the  power  of  naturalizing  aliens  according  to  their  own 
will  and  pleasure,  and  thereby  giving  them  the  rights  and 
privileges  of  citizens  in  every  other  State.  If  each  State 
can  naturalize  upon  one  year's  residence,  when  the  act  of 
Congress  requires  five,  of  what  use  is  the  act  of  Congress, 
and  how  does  it  become  an  uniform  rule  ? 

In  the  case  of  Collet  r.  Collet,1  tried  in  the  Circuit 
Court,  Penns3*lvania  District,  it  was  held  that  the  power 
of  naturalization  was  concurrent.  "  The  true  reason,"  says 
the  Court,  "  for  investing  Congress  with  the  power  has 
been  assigned  at  the  bar :  it  was  to  guard  against  too  nar- 
row instead  of  too  liberal  a  mode  of  conferring  the  rights 
of  citizenship.  Thus,  the  individual  States  cannot  ex- 
clude those  citizens  who  have  been  adopted  by  the 
United  States ;  but  they  can  adopt  citizens  upon  easier 
terms  than  those  which  Congress  may  deem  it  expedient 
to  impose."  But  this  decision  and  the  reason  on  which  it 
is  founded  are  alike  erroneous.  Mr.  Madison,  in  the  forty- 
second  number  of  "  The  Federalist,"  addresses  himself 
to  this  point.  He  says,  u  The  dissimilarity  in  the  rides  of 
naturalization  has  long  been  remarked  as  a  fault  in  our 
system,  and  as  laying  a  foundation  for  intricate  and  delicate 
questions."  lie  then  comments  on  the  defects  in  the  Ar- 
ticles of  Confederation,  in  the  clause  intended  to  give  the 
citizens  of  each  State  the  privileges  of  citizens  in  the  sev- 
eral States,  and  in  concluding  says  :  "  The  very  improper 
power  was  retained  by  each  State  of  naturalizing  aliens  in 
every  other  State.  In.  one  State,  residence  for  a  short 
time  confers  all  the  rights  of  citizenship  :  in  another,  qual- 
ifications of  greater  importance  are  required.  An  alien, 
therefore,  legally  incapacitated  for  certain  rights  in  the 
latter,  may  by  previous  residence  only  in  the  former  re- 
move his  incapacity,  and  thus  the  law  of  one  State  be  pre- 
posterously rendered  paramount  to  the  law  of  another, 
1  '2  Dallas,  •_'<)<>. 


CITIZENSHIP  AND   ALLEGIANCE.  57 

within  the  jurisdiction  of  the  other.  .  .  .  By  the  laws 
of  several  States,  certain  descriptions  of  aliens,  who  have 
rendered  themselves  obnoxious,  were  laid  under  interdicts 
inconsistent  not  only  with  the  rights  of  citizenship,  but 
with  the  privileges  of  residence.  What  would  have  been 
the  consequence  if  such  persons,  by  residence  or  otherwise, 
had  acquired  the  character  of  citizens  under  the  laws  of 
another  State,  and  then  asserted  their  rights  as  such  both 
to  residence  and  citizenship  within  the  State  proscribing 
them  ?  "  The  new  Constitution  has  with  great  propriety, 
he  therefore  urges,  given  the  power  of  naturalization  to 
Congress.  In  the  thirty-second  number  of  "The  Feder- 
alist," Alexander  Hamilton  says  exclusive  power  is  dele- 
gated to  the  United  States  in  three  cases  only  :  (1.)  Where 
the  Constitution  in  express  terms  grants  an  exclusive  au- 
thority to  the  Union.  (2.)  Where  it  grants  an  authority  to 
the  Union,  and  prohibits  the  State  from  exercising  the  like 
authority.  (3.)  Where  it  grants  an  authority  to  the  Union 
to  which  a  similar  authority  in  the  States  would  be  abso- 
lutely and  totally  contradictory  and  repugnant.  He  gives 
examples  of  these  cases  from  the  Constitution.  The  third 
will  be  found,  he  says,  in  that  clause  which  declares  that 
Congress  shall  have  power  "  to  establish  an  uniform  rule 
of  naturalization  throughout  the  United  States."  This 
must  necessarily  be  exclusive  ;  because  if  each  State  had 
power  to  prescribe  a  distinct  rule,  there  could  be  no  uni- 
form rule. 

Indeed,  the  decision  in  the  case  of  Collet  v.  Collet 
may  be  considered  as  in  effect  overruled.  In  the  same 
Circuit  Court,  in  1797,  Judge  Iredell,  in  the  case  of  the 
United  States  v.  Villato,1  declared  that  if  the  case  had  not 
previously  occurred,  he  should  be  disposed  to  think  that 
the  power  of  naturalization  operated  exclusively,  as  soon 
as  it  was  exercised  by  Congress.  And  in  the  Circuit 
1  2  Dallas,  370. 


58  CITIZENSHIP   AND   ALLEGIANCE. 

Court  of  Pennsylvania,  in  1814, :  Judge  Washington  gave 
it  as  his  opinion  that  the  power  to  naturalize  was  exclu- 
sively vested  in  Congress.  In  Chirac  r.  Chirac,2  the  first 
point  made  was  that  the  estate  of  which  John  Baptiste 
Chirac  died  seized  was,  in  his  lifetime,  escheatable,  be- 
cause it  was  acquired  before  he  became  a  citizen  of  the 
United  States  ;  the  law  of  the  State  of  Maryland,  accord- 
ing to  which  he  took  the  oaths  of  citizenship,  being  vir- 
tually repealed  by  the  Constitution  of  the  United  States 
and  the  act  of  naturalization  enacted  by  Congress.  It 
was  contended  by  Mr.  Harper,  for  the  plaintiff,3  that  he 
acquired  no  capacity  to  hold  by  his  naturalization  under 
the  local  law,  since  by  the  Constitution  Congress  alone 
has  the  power  of  prescribing  uniform  rules  of  natural- 
ization ;  and  the  act  of  Maryland  is  a  general  natural- 
ization law,  not  a  special  act  authorizing  citizens  to  hold 
lands,  or  conferring  other  particular  privileges.  If  the 
States  could  make  such  a  law,  the  Constitution  of  the 
United  States  would  be  completely  evaded,  as  the  citizens 
of  one  State  are  entitled  to  all  the  privileges  and  immu- 
nities of  citizens  in  every  other  State.  It  was  contended 
on  the  other  side,  by  Mr.  Martin  and  his  colleague,  that 
the  Constitution  of  the  United  States,  and  the  laws  made 
under  it,  do  not  ipsojitre,  repeal  a  state  law  relative  to  the 
same  matter,  but  only  annul  such  parts  of  the  latter  as 
are  inconsistent  with  the  former.  The  respective  States 
still  preserve  the  right  of  making  naturalization  laws, 
giving  certain  civil  rights  to  foreigners  without  conferring 
universal  political  citizenship.  Chief  Justice  Marshall, 
who  delivered  the  opinion  of  the  Court,  observed  that  '•  it 
certainly  ought  not  to  be  controverted  that  the  power  of 
naturalization  is  exclusively  in  Congress.''  In  Sturges 

1   (iolilrn  v.  Prince,  Whartou's  Digest,  tit.  Const.  Law,  1^6. 
-  'J  Wheaton's  Kcp.  L^<).  3    I  Wheaton's  Kep.  19:5. 

4  ;)  Dallas  KI.).  ;;s(j. 


CITIZENSHIP  AND   ALLEGIANCE.  59 

v.  Crowninshield,  the  chief  justice  laid  this  down  as  a 
correct  general  principle,  that  whenever  the  terms  in  which 
a  power  was  granted  to  Congress,  or  the  nature  of  the 
power,  required  that  it  should  be  exercised  exclusively  by 
Congress,  the  subject  was  as  completely  taken  from  the 
state  legislatures  as  if  they  had  been  expressly  forbid- 
den to  act  on  it.  In  Houston  v.  Moore,1  Judge  Wash- 
ington, in  delivering  the  opinion  of  the  Court,  said  that 
when  Congress  exercised  their  powers  upon  any  given 
subject,  the  States  could  not  enter  upon  the  same  ground 
and  provide  for  the  same  objects ;  for  if  the  laws  of  the 
State,  argued  he,  agree  in  every  respect  with  the  laws  of 
Congress,  they  are  useless.  If  they  differ,  they  must,  in 
the  nature  of  things,  oppose  each  other  so  far  as  they  do 
differ,  and  the  laws  of  the  State  must  be  void.  Judge 
Story  mentioned  in  the  same  case  the  power  in  Congress 
to  establish  an  uniform  rule  of  naturalization  as  one  which 
was  exclusive,  on  the  ground  of  there  being  a  direct  re- 
pugnancy or  incompatibility  in  the  exercise  of  it  by  the 
States.  So  that,  as  Chancellor  Kent  says,2  "  the  weight 
of  authority  as  well  as  of  reason  may  be  considered  as 
clearly  in  favor  of  this  construction."' 

This  power,  which  I  have  thus  shown  to  be  exclusively 
vested  in  Congress,  relates  wholly  to  the  allegiance  of  all 
adopted  citizens  :  and  yet,  in  spite  of  this,  in.  the  face  of 
the  express  provisions  of  the  Constitution,  with  a  total 
disregard  to  the  civil  and  political  history  of  our  country 
and  the  true  nature  of  allegiance,  it  has  been  said  that  we 
owe  no  allegiance  to  the  United  States  !  And  the  citizen 
of  this  republic,  when  called  011  to  designate  his  national 
banner,  must  point  to  the  palmetto-tree,  and  not  to  the 
stars  and  stripes  of  that  flag  which  has  floated  in  glory  and 
in  triumph  over  the  lakes  and  at  New  Orleans!  All  our 
oldest  and  most  cherished  associations  must  be  broken 

1  5  Wheaton's  Rep.  1.  -  1  Kent's  Com.  398. 


60  CITIZENSHIP   AND   ALLEGIANCE. 

up :  the  tics  which  bind  us  to  our  brethren  of  the  North 
and  the  East  and  the  West  must  be  cut  asunder :  our 
common  labors  and  common  sufferings  in  the  cause  of  lib- 
erty must  be  forgotten  ;  the  American  history  must  be 
blurred  and  blotted  out ;  the  Union  is  110  longer  to  be 
regarded  with  patriotic  pride  :  all  our  duties,  all  our  as- 
pirations, must  l>e  hemmed  in  by  state  lines  :  we  are  to 
be  taught  that  there  is  no  such  thing  as  a  citizen  of  the 
United  States,  and  that,  instead  of  looking  for  the  emblem 
of  our  country  to  the  bird  of  Liberty,  soaring  aloft,  we 
must  cast  our  eyes  on  a  venomous  reptile,  with  "  A  noli  me 
tan(/crc  "  inscribed  on  the  ground  that  supports  it. 

These  things  cannot  be  right ;  the  questions  of  citizen- 
ship and  naturalization  are  of  an  international  nature. 
We  must  extend  our  views  beyond  the  narrow  limits  of 
our  own  State,  and  even  beyond  the  United  States,  and 
look  abroad  among  the  nations  of  the  world.  What  more 
ridiculous  and  contemptible  object  can  be  imagined  than 
an  individual  in  a  foreign  land  standing  in  need  of  pro- 
tection and  claiming  it  in  the  name  of  the  sovereign  peo- 
ple of  South  Carolina  ?  On  the  other  hand,  what  more 
delightful  spectacle  can  the  American  patriot  contemplate 
than  the  citizen  of  this  Union  unfurling  for  his  protection 
our  well  known  and  universally  respected  national  banner, 
and  recounting  to  an  attentive  and  admiring  auditory  the 
history  of  his  country  ?  When  I  think  of  these  tilings  my 
heart  beats  high  with  pleasurable  emotions,  and  I  thank 
God  that  1  am  a  citizen  of  the  United  States.  1  confess 
1  cannot  envy  the  feelings  or  judgment  of  the  man  who 
thinks  there  is  no  such  thing  as  a  citizen  of  the  United 
States. 

'"  .No  such  thing  as  a  citizen  of  the  United  States! 
take   ii])  the   Constitution:    T    open   it:    I  find  in  the  very 
first   article,    second   section,   that   "no  person  shall  be  a 
Kepresentative  who  shall  not  have  .   .   .  been  seven  years 


CITIZENSHIP  AND   ALLEGIANCE.  Gl 

a  citizen  of  the  United  States."  I  turn  to  the  next  sec- 
tion :  I  find,  "  No  person  shall  be  a  Senator  who  shall  not 
have  .  .  .  been  nine  years  a  citizen  of  the  United  States." 
The  expression  "  citizen  of  the  United  Sta.tes  "  is  again 
and  again  inscribed  011  the  very  face  of  the  instrument. 
I  cannot  believe  that  the  framers  of  the  Constitution  were 
so  ignorant  or  inattentive  as  not  to  know  or  not  to  regard 
the  import  of  the  phrase. 

"  No  such  thing  as  a  citizen  of  the  United  States !  " 
The  wildest  theorist  in  his  most  extravagant  dreams  has 
never  denied  that  there  is  a  government  of  the  United 
States.  Who  ever  heard  of  a  government  without  citi- 
zens ? 

I  have  brought  to  the  view  of  the  Court  the  constitu- 
tional provision  concerning  treason  against  the  United 
States.  Can  there  be  treason  where  there  are  no  citi- 
zens ? 

These  remarks,  may  it  please  the  Court,  appear  to  me 
to  furnish  a  satisfactory  reply  to  the  argument  that  no 
alien  can  become  a  citizen  of  the  United  States  until  he 
first  becomes  a  citizen  of  a  single  State.  We  have  seen 
that  the  power  of  naturalization  is  vested  exclusively  in 
Congress.  It  is  undoubtedly  true  that  the  state  courts 
admit  aliens  to  the  right  of  citizenship.  But  they  do 
this  as  agents  of  Congress,  by  virtue  of  the  power  en- 
trusted to  them  by  Congress,  and  according  to  the  rule 
prescribed  by  Congress.  The  right  of  citizenship  is  con- 
ferred by  the  United  States,  not  by  the  State.  An  alien 
may  be  naturalized  in  a  Territory,  he  may  be  naturalized 
in  the  District  of  Columbia,  he  may  reside  during  his 
probationary  term  in  one  State  and  may  be  admitted  in 
another.  The  certificate  which  he  receives  from  court  de- 
clares him  "  a  citizen  of  the  United  States."  When  nat- 
uralized, then,  he  becomes  immediately  a  citizen  of  the 
United  States ;  and  it  is  in  that  character  alone  that  he 


62  CITIZENSHIP   AND   ALLEGIANCE. 

can  become  a  citizen  of  a  single  State.  The  Union  forms 
the  bond  of  connection  between  him  and  the  State.  Before 
he  can  be  admitted  he  is  required  to  swear  that  he  will 
support  the  Constitution  of  the  United  States,  thus  pledg- 
ing- his  allegiance  to  the  United  States ;  for  allegiance,  as 
I  have  shown,  is  a  paramount  obligation  and  is  due  to  the 
supreme  authority,  and  the  Constitution  declares  itself, 
and  the  laws  of  the  United  States  passed  in  pursuance 
thereof,  the  supreme  law  of  the  land.  I  have  now  shown  : 
(1.)  That  the  petitioner,  George  Granstein,  who  has  com- 
plied with  all  the  other  conditions  of  the  act  of  Congress, 
and  offered  to  take  the  oath  prescribed  by  it,  was  entitled 
to  be  admitted  a  citizen  of  the  United  States.  (2.)  That 
if  the  State  have  a  concurrent  power  with  Congress  in  the 
subject  of  naturalization,  she  certainly  has  not  exercised 
it  since  the  adoption  of  the  Constitution  of  the  United 
States,  no  provision  being  found  in  the  Constitution  or 
laws  on  this  subject.  (3.)  That  the  State  has  no  such 
power,  but  that  she  retains  the  power  of  denization.  (4.) 
That  the  power  of  naturalization  is  necessarily  exclusively 
vested  in  Congress,  as  appears  from  the  nature  of  the 
power  itself,  from  the  contemporaneous  exposition,  and 
from  judicial  opinions.  (5.)  That  in  strictness  of  speech 
our  allegiance  is  due  to  the  United  States  only,  but  that 
there  is  a  fealty  (or  "  secondary  allegiance '')  due  to  the 
State,  and  that  the  inference  drawn  by  his  honor  from 
the  alleged  rights  and  character  of  South  Carolina  as  a 
sovereign  State  is  clearly  erroneous.  ( (5.)  That  when  an 
alien  is  naturalized  in  our  country  he  becomes  immedi- 
ately a  citizen  of  the  United  States,  and  it  is  in  that  char- 
acter alone  that  he  can  become  a  citizen  of  a  single  State.1 
These  propositions  are  in  strict  accordance  with  the  Con- 
stitution and  the  laws,  and  appear  to  me  perfectly  clear 
and  undeniable.  I  should  not  have  dwelt  upon  them  so 
1  Laws  of  Congress. 


CITIZENSHIP  AND   ALLEGIANCE.  63 

long1  were  it  not  that  directly  repugnant  doctrines  have 
been  industriously  circulated  throughout  our  State,  and 
are  said  to  have  received  the  sanction  of  some  popular 
assemblies,  and  appear  now  to  have  received  the  sanction 
of  the  judge  below.  But  I  am  sure  they  will  never  re- 
ceive the  sanction  of  this  Court. 

Isocrates,  in  one  of  his  orations  to  the  sophists,  speak- 
ing of  the  ease  with  which  a  false  proposition  may  be 
supported  to  the  satisfaction  of  a  common  auditory,  says 
the  reason  is  that  when  men  find  that  something  can  be 
said  in  favor  of  what  on  its  very  face  appeared  indefen- 
sible, they  grow  distrustful  of  their  own  reason,  and  are 
easily  hurried  on  by  the  orator  to  whom  they  abandon 
themselves.  But  your  honors  are  not  to  be  hurried  on  in 
this  manner,  nor  to  be  deceived  by  the  gloss  that  sophistry 
confers  on  ingenious  falsehoods.  It  is  our  pride,  a  matter 
of  just  pride  and  gratulation,  that  we  have  in  this  judi- 
ciary a  tribunal  that  will  not  be  swayed  by  popular  error 
or  momentary  excitement,  —  a  tribunal  that  will  hear  pa- 
tiently and  gravely,  deliberate  carefully  and  calmly,  and 
decide  according  to  the  well-settled  principles  of  law  and 
the  Constitution  of  oiir  country.  To  this  tribunal  I  now 
submit  the  case  of  the  appellant. 

N.  B.  The  opinion  of  Judge  Bay  was  reversed  by  the 
court  of  appeals.  ]•?.>'.  parta  Granstein,  1  Hill,  South 
Carolina  lieports,  141. 


ARGUMENT   IX   THE    SLAUGHTER-HOUSE 

CASES. 

BEFORE  THE  SUPREME  COURT  OF  LOUISIANA. 

[The  construction  of  the  amendments  to  the  Constitution  of 
the  United  States  was  involved  in  the  so-called  slaughter-house 
cases.  The  legislature  of  Louisiana,  by  an  act  passed  in  March, 
18G9,  had  granted  to  a  certain  corporation  an  exclusive  right 
for  twenty-five  years  to  have  and  maintain  slaughter-houses  and 
yards  for  inclosing  cattle  intended  for  sale  or  slaughter  within 
several  parishes  in  that  State,  which  included  the  city  of  New 
Orleans,  and  prohibiting  all  other  persons  from  building  or 
keeping  cattle-yards  or  slaughter-houses  within  those  limits, 
and  requiring  that  all  cattle  and  other  animals  intended  for  sale 
or  slaughter  in  that  district  should  be  brought  to  the  yards  of 
the  corporation,  where  certain  fees  might  be  charged.  The  act 
of  the  legislature  was  assailed  upon  the  ground  that  it  was 
unconstitutional  and  iu  conflict  with  the  provisions  of  the  thir- 
teenth and  fourteenth  articles  of  amendment  to  the  Constitution 
of  the  United  States.  The  Supreme  Court  of  Louisiana  held 
the  act  of  the  legislature  valid,  and  afterwards,  upon  appeal  to 
the  Supreme  Court  of  the  United  States,  the  judgment  of  the 
Supreme  Court  of  the  State  was  affirmed.  Justice  Miller  being 
the  organ  of  the  Court.  V'ulc.  1G  Wallace,  United  States  Su- 
preme Court  Reports,  p.  .'57.  Mr.  Hunt's  argument  before  the 
Supreme  Court  of  the  State  is  given.] 

MAY  it  please  your  honors,  I  had  hoped  not  to  trouble 
you  in  this  ease.  The  arrangement  made  was  that  it 
should  !>e  discussed  by  my  colleague  (Mr.  Roselius),  who 
opened  the  ease  with  such  ability,  and  should  be  closed 


ARGUMENT  IN  THE   SLAUGHTER-HOUSE   CASES.    65 

by  my  brother  (Mr.  William  H.  Hunt),  but  circumstances 
rendered  him  incapable  of  addressing  the  Court,  and  I 
therefore  take  his  place. 

The  argument  presented  to  you  against  my  clients  has 
been  of  the  most  extraordinary  character.  Whether  I 
consider  the  unfounded,  illegal,  and  unconstitutional  doc- 
trines of  the  first  counsel  (Mr.  J.  B.  Cotton),  and  the 
manner  in  which  he  presented  them,  his  fine  voice,  his 
action  and  declamation,  or  the  solemn,  slow,  labored,  and 
heavy  humor  with  which  the  counsel  who  followed  him 
(Mr.  J.  Q.  A.  Fellows)  was  pleased  to  liken  my  eloquent 
colleague  to  Rip  Van  Winkle,  a  witticism  which  de- 
lighted nobody  except  the  counsel  who  succeeded  him ; 
or  whether  I  consider  the  grave,  serious,  vituperative,  and 
lengthy  address  delivered  before  you  this  day,  abusive  of 
the  character  and  standing  of  seventeen  citizens  against 
whom  there  is  no  evidence  in  the  record,  and  illegally 
and  acrimoniously  denunciatory  of  a  coordinate  branch  of 
the  government,  I  am  pained  that  such  a  scene  should 
have  been  displayed  and  such  things  heard  in  an  Ameri- 
can court ;  shocked  especially  that  he  who  last  addressed 
you  (Judge  Campbell)  1  should  have  resorted  to  such  a 
system  of  attack. 

Judges,  you  have  heard  him  declare  that  all  the 
defendants  in  this  case  ought  to  be  in  the  penitentiary, 
and  that  they  are  all  guilty  of  fraud  !  I  should  like  to 
know  if  he  ever  brings  a  suit  against  any  one  who  is  not 
charged  by  him  with  fraud ;  if  fraud  is  not  his  mono- 
mania ;  if  it  is  not  upon  that  that  he  speaks  whenever 
he  addresses  a  court  of  justice,  and  seeks  to  uphold  the 
wrong  against  the  laws  of  the  land. 

I  will  not  follow  him  through  his  entire  argument  at 
present.  Time  does  not  allow  it.  I  shall  only  select 

1  John  A.  Campbell,  formerly  an  associate  justice  of  the  U.  S. 
Supreme  Court. 


66    ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

those  points  which  I  think  deserve  notice.  It  will  not 
"amaze  "you,  with  your  judicial  experience,  —  although 
it  may  "  amaze  "  some  of  the  interested  persons  in  court 
who  have  heard  his  speech,  —  to  know  that  there  is 
nothing  in  this  case  but  a  simple  question  of  law,  which 
ought  to  have  been  presented  without  declamation,  denun- 
ciation, or  mystification. 

What  i.x-  the  case  ?  The  legislature  of  this  State,  in 
the  exercise  of  its  police  power,  has  thought  proper  to 
designate  and  fix  a  place  for  the  slaughter  of  animals 
whose  meat  is  intended  for  sale  in  the  city  of  New 
Orleans.  I  need  not  tell  you  how  important  health  is  to 
the  individual  or  to  the  community  at  large,  and  I  shall 
take  it  for  granted,  in  the  commencement  of  my  argu- 
ment, that  it  is  within  the  police  power  of  the  State  to 
pass  regulations  concerning  the  health  of  the  people  of 
the  State.  What  are  the  circumstances,  then,  that 
induced  the  legislature  to  exercise  the  power  upon  this 
occasion  ? 

When,  this  city  was  under  the  government  of  the 
Cabildo,  and  afterwards  under  the  government  of  the 
charter  of  1804,  the  population  of  New  Orleans  was  com- 
paratively very  small,  —  a  few  thousand  inhabitants.  Yet 
they  found  it  necessary,  even  at  that  time,  to  regulate  the 
slaughtering  of  animals  whose  meat  was  to  be  sold  in  the 
market  of  the  city,  and  a  place  was  assigned  for  the  pur- 
pose, at  or  below  the  point  where  the  slaughter-house  is 
established  at  this  time  by  the  act  of  the  legislature. 
What  was  the  object  of  the  regulation  ?  Simply  this : 
that  the  blood  and  the  offals,  and  those  things  which  were 
noisome  and  offensive  and  dangerous  to  public  health, 
should,  after  the  animals  were  slain,  be  tin-own  into  the 
Mississippi,  where  they  would  be  taken  up  and  carried 
along  its  rapid  current  until  they  reached  the  waters  of 
the  Gulf  of  Mexico,  where  they  would  be  innocuous,  or 


ARGUMENT  IN  THE   SLAUGHTER-HOUSE   CASES.    67 

serve  as  food  for  the  fishes  and  monsters  of  the  deep. 
Things  continued  under  this  regulation  for  a  long  time ; 
but  our  population  increased,  and,  as  the  Americans  came 
in,  more  vigor  was  exhibited  in  the  government  of  the 
State  and  city.  The  population  at  first  chiefly  settled 
and  concentrated  in  what  is  now  the  lower  part  of  the 
city.  Above  the  line  of  Canal  Street  there  were  few,  if 
any  inhabitants.  But  as  the  Americans  increased  in 
numbers,  they  established  themselves  beyond  it  and 
moved  upward  for  the  purpose  of  meeting  the  commerce 
coming  down  the  Mississippi.  The  butchers,  who  had 
been  carrying  on  their  business  quite  conveniently  from 
the  opposite  side  of  the  river,  below  the  city,  began  to 
find  the  situation  inconvenient.  They  had  been  in  the 
habit  of  bringing  over  to  New  Orleans,  in  pirogues,  the 
meat  of  the  animals  killed  at  the  slaughter-house  on  the 
opposite  bank  of  the  river,  below  the  city,  and  selling  it 
in  the  markets  of  New  Orleans.  But  with  the  increase  of 
population  there  came,  of  course,  an  increased  demand 
for  food  and  meat.  The  butchers'  business  was  more 
extended  and  enlarged.  They  had  more  employment  and 
more  gain,  and  gradually  acquired  more  power.  They 
determined  to  move  to  the  upper  part  of  the  city,  and  to 
slaughter  there  the  animals  whose  meats  they  sold ;  and 
this  they  did  to  the  annoyance  and  injury  of  the  public. 

After  the  lapse  of  some  time  a  series  of  municipal 
ordinances  was  passed  upon  this  subject.  They  were 
entitled  "  Ordinances  for  the  protection  of  the  health  of 
the  city,  and  to  guard  against  public  nuisances."  They 
provided  that  no  establishment  for  the  burning  of  bones, 
no  establishment  in  which  any  business  deleterious  to  the 
public  health  was  intended  to  be  carried  on,  nothing 
noisome,  nothing  that  emitted  a  poisonous  vapor,  etc., 
should  be  permitted  within  the  corporate  limits  of  the  city 
of  New  Orleans  ;  and  they  particularly  provided  that  no 


68   ARGUMENT  IN   THE   SLAUGHTER-HOUSE   CASES. 

beef  should  be  slaughtered  except  in  "  slaughter-houses,'' 
and  that  the  heads  and  entrails,  the  offals,  and  other 
refuse  parts  of  the  animals,  etc.,  should  be  taken  away 
and  thrown  into  the  river  at  a  point  below  the  city. 

Things  remained  in  this  condition  until  the  city  of 
Lafayette  was  incorporated.  But  there  existed  a  con- 
stant desire  and  continued  exertion  to  remove  from  the 
limits  of  New  Orleans  all  slaughter-houses.  But  this  did 
not  prove  successful  until  the  butchers  themselves  saw 
that  their  own  convenience  and  interests  would  be 
advanced  by  erecting  cattle-pens  and  slaughter-houses 
above  Jackson  Street,  where  there  was  a  tavern  called  the 
"  Bull's  Head,''  at  which  the  butchers  itsed  to  meet  and 
converse,  and  carry  on  their  business,  except  the  actual 
slaughtering  of  animals.  Population  and  business  con- 
tinued to  extend  and  move  upwards,  higher  and  higher  : 
and  the  butchers  again  found  it  convenient  and  advan- 
tageous to  move  up.  They  went,  as  the  enactments 
show,  to  the  city  of  Jefferson,  where  they  have  landed 
their  cattle  on  the  bank  of  the  river,  put  and  kept  up 
pens,  slaughtered  animals,  throwing  the  offal,  etc.,  into 
the  river,  and  established  and  kept  up  a  constant  source 
of  nuisance  and  annoyance  to  the  community,  injurious 
and  dangerous  to  the  health,  the  limbs  and  lives  of  the 
citizens,  and  obstructing  and  stopping  the  prosperity  and 
growth  of  the  city. 

1  ask  your  honors  to  reflect  for  a  moment  upon  the 
actual  condition  and  situation  of  persons  and  tilings, 
under  this  evidence:  two  or  throe  hundred  beeves 
arriving  every  day  for  the  purpose  of  being  slaughtered 
for  the  New  Orleans  market,  landed  directly  at  the  foot 
of  Louisiana  Avenue  ;  persons  who  pass  along  the  levee 
and  the  streets  adjoining  the  landing,  in  a  densely  popu- 
lated part  of  a  town,  watching  invariably  with  fear  or 
anxiety,  and  continually  inconvenienced  by  these  untamed 


ARGUMENT  IN  THE   SLAUGHTER-HOUSE   CASES.    69 

animals,  sometimes  breaking  loose  and  rushing  wildly  and 
madly  through  the  streets,  endangering  the  limbs  and  the 
lives  of  men,  women,  and  children.  Is  it  not  palpable  to 
any  man  who  will  look  at  things  as  they  are,  instead  of 
indulging  in  wild  ideas  of  liberty  for  every  man  to  do 
whatever  he  pleases,  regardless  of  others'  rights,  that  the 
public  welfare  and  the  protection  of  the  lives  and  limbs 
of  the  citizens  require  that  a  stop  should  be  put  to  this  ? 
Of  all  the  places  in  New  Orleans,  there  is  none,  at  certain 
seasons  of  the  year,  more  pleasant  than  the  bank  of  the 
river  Mississippi ;  the  people  come  to  it  for  pleasure  and 
for  enjoyment,  and  they  use  it  also  for  their  business  pur- 
poses. The  whole  portion  of  the  city  upon  which  the 
cattle  were  landed  and  slaughter-houses  were  built  was 
cut  off  from  the  vise  of  the  inhabitants.  Grand  jury  after 
grand  jury  reported  against  it  as  a  public  nuisance,  and 
called  upon  the  municipal  council  of  Xew  Orleans  to 
exercise  the  police  power  vested  in  it  by  the  State  and 
pass  ordinances  to  correct  the  evil,  and  the  councils  did 
so.  They  called  upon  the  city  council  of  Lafayette  to 
pass  ordinances,  and  they  too  did  so.  They  reported  it 
to  the  district  courts  of  the  State,  in  order  that  it  might 
be  known  to  all  the  State.  It  was  a  matter  of  grievous 
public  complaint,  day  after  day,  week  after  week,  month 
after  month,  and  year  after  year.  At  length,  in  1862, 
the  city  of  Jefferson  passed  an  ordinance  for  the  express 
purpose  of  removing  the  slaughter-houses. 

It  was  similar  to  the  law  that  is  now  before  you,  and 
conferred  upon  Messrs.  Kochereau  and  Hepp,  two  citizens 
of  great  wealth  and  respectability,  rights  and  powers  of 
the  same  kind  with  those  conferred  here  upon  the  corpo- 
ration. It  fell  through.  I  need  not  dwell  upon  the 
reason.  The  Court  is  aware  of  the  late  history  of  the 
country :  that  the  Southern  States,  supposing  themselves 
strong  enough  to  effect  their  purpose,  determined  to 


70    ARGUMENT   IX   THE   SLAUGHTER-HOUSE   CASES. 

separate  from  the  Union,  made  an  unsuccessful  and  bale- 
ful attempt  at  secession.  Messrs.  Rochereau  and  Ilepp, 
though  rich  men,  were  unable  to  make  any  use  of  the 
authority  which  was  given  to  them.  The  city  of  New 
Orleans  was  cut  off  from  trade  and  commerce,  and  from 
intercourse  and  communication  with  other  parts  of  the 
Union.  General  Butler  was  here :  a  large  number  of 
citizens  were  expelled  :  the  city  was  walled  in  by  military 
rule.  Is  it  a  wonder,  then,  that  Ilepp  and  Kocliereau 
could  not  use  the  powers  and  privileges  conferred  upon 
them  by  the  ordinance  ? 

In  1866,  peace  having  been  reestablished,  and  the 
power  of  the  Union  once  more  acknowledged,  matters 
began  to  resume  their  regular  course.  The  grand  jury  of 
this  city  once  more  presented  to  the  district  court  this 
important  subject,  and  earnestly  invoked  the  action  of  the 
State  to  remove  "  the  greatest  of  all  nuisances."  They 
stated  that,  in  consequence  of  the  impurity  of  the  water 
of  the  Mississippi  by  the  throwing  of  offals  and  filth 
(especially  from  slaughtered  animals  by  butchers)  into  it, 
above  the  city,  more  contagion  and  disease  had  been  pro- 
duced than  by  any  other  cause  :  and  they  complained  in 
strong  and  direct  terms  that  it  was  impossible  to  preserve 
the  public  health  so  long  as  the  abattoirs  or  slaughter- 
houses in  Jefferson  were  kept  up  above  the  city. 

In  the  year  1867  the  State  felt  it  necessary  to  relieve 
the  suffering  people,  and  an  act  was  passed  by  the  legis- 
lature for  the  object.  It  was  entitled  ''  An  act  to 
prevent  offal  and  nuisances  from  being  thrown  in  the 
Mississippi  liiver  within  the  limits  of  the  cities  of  New 
Orleans  and  Jefferson."  The  first  section  provided : 
"That  the  city  council  of  the  city  of  New  Orleans,  and 
the  city  council  of  the  citv  of  Jefferson,  be,  and  they  are 
hereby  required,  before  the  first  day  of  May,  eighteen 
hundred  and  sixty-seven,  to  pass  ordinances  prohibiting 


ARGUMENT  IN  THE   SLAUGHTER-HOUSE   CASES.    71 

any  offal  or  nuisance  from  slaughter-houses,  and  feculent 
matters  from  privies,  from  being  thrown  into  the  Missis- 
sippi River  anywhere  above  Slaughter-House  Point," — 
Slaughter-House  Point,  the  very  point  now  occupied  by 
the  company.  To  enforce  obedience  to  this  command,  the 
act  declared  that  no  ordinance  of  either  council  should 
have  force  until  that  ordered  by  this  act  should  be  passed. 

It  then  further  provided  :  "  That  after  the  said  first 
day  of  May,  eighteen  hundred  and  sixty-seven,  it  shall  be 
unlawful  for  any  person  whatever  to  throw  any  offal, 
carrion,  or  dead  animals,  or  feculent  matters  from  privies, 
into  the  Mississippi  River  at  any  point  in  front  of  the 
corporate  limits  of  the  said  cities  of  New  Orleans  or 
Jefferson,  under  a  penalty  of  fifty  dollars  for  each  offense, 
to  be  recoverable  before  any  court  of  competent  jurisdic- 
tion, for  the  use  of  the  State,  one  half  to  go  to  the 
informer,  the  said  penalties  to  be  in  addition  to  any  fines 
and  penalties  which  may  be  imposed  by  the  ordinances  of 
the  said  cities  of  New  Orleans  and  Jefferson." 

This  act  was  passed  March  23,  18G7.  Its  object  was  to 
compel  the  municipal  powers  to  do  their  duty,  in  spite  of 
the  butchers'  opposition,  which  had  become  so  formidable 
as  to  control  the  town  councils.  The  legislature  used 
the  plainest  words,  and  adopted  the  simplest  means. 
Nothing  can  be  clearer  and  more  positive  than  the  order 
which  it  gave  to  the  town  councils.  Why  did  not  they 
obey  it?  Because  they  were  overawed  or  circumvented 
and  deluded  ;  because  the  butchers,  represented  here  by 
the  counsel  who  last  addressed  you,  were  suddenly  con- 
verted into  champions  of  liberty  for  themselves,  regard- 
less of  all  others,  and  boldly  declared  that  no  police  regu- 
lation, however  necessary  to  the  happiness  or  even  the 
existence  of  the  community,  could  interfere  constitution- 
ally with  that  liberty  and  their  free  use  of  their  own 
property.  They  knew  that  the  use  which  they  were  male- 


72    ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

ing  of  that  property  was  against  public  health,  prevented, 
or  at  least  checked  the  growth  of  the  city,  and  was  in- 
compatible with  the  welfare  of  this  community  and  the 
general  good  of  the  commonwealth.  But  what  of  that  ? 
They  would  join  themselves  together  and  form  a  corpo- 
ration of  six,  ycleped  the  "  Benevolent  Association  of 
Butchers."  The  Benevolent  Association  of  Butchers,  and 
champions  of  the  right  to  nse  their  own  property  as  they 
please,  without  regard  to  law  or  the  liberty  of  others ! 
There  is  their  act  of  incorporation,  dated  immediately 
after  the  law  of  1867.  It  sets  forth  that  the  six  persons 
therein  named  had  become  "  benevolent  butchers  "  to  one 
another,  and  for  the  purpose  of  trading"  in  cattle,  and  of 
importing  and  selling  cattle  in  the  market  of  Xew  Or- 
leans ;  and,  sirs,  —  it  is  strange,  yet  true,  —  they  exercised 
sufficient  influence  to  prevent  the  councils  from  obeying 
the  order  of  the  State. 

Time  rolled  on  :  the  nuisance  increased  :  the  voice  of 
the  people  was  louder ;  public  opinion  could  no  longer  be 
stayed.  When  the  legislature  of  this  State  met  again, 
the  people  presented  new  petitions,  numerous  and  largely 
signed,  praying  for  further  and  direct  state  action.  They 
urged :  l'  You  have  sent  us  to  the  councils  ;  we  cannot 
induce  them  to  do  their  duty.  Look  at  our  situation ! 
\  ou  are  here  to  legislate,  not  merely  for  one  particular 
spot  or  parish,  but  for  the  entire  State.  You,  sir,  come 
from  Caddo,  in  the  extreme  northwestern  part  of  Louisi- 
ana. You  (tome  from  Plaqucmines,  at  the  mouth  of  the 
river.  ^  ou,  legislators,  are  all  assembled  here,  represent- 
ing every  interest  and  every  parish  of  this  State.  This  is 
a  matter  of  common  concern  and  interest.  Our  commerce 
is  with  each  and  all  of  you.  On  you  New  Orleans  de- 
pends :  it  is  a  great  and  noble  city,  of  which  we  are 
proud.  Make  those  regulations  which  are  essential  to  the 
health  and  comfort  of  the  city,  to  its  growth  and  pros- 


ARGUMENT  IN  THE  SLAUGHTER-HOUSE   CASES.    73 

perity,  to  the  security  of  the  lives  and  limbs  of  its  inhab- 
itants, and  to  the  best  and  freest  use  of  the  banks  of  our 
river  for  business  and  pleasure,  and  you  will  confer  a 
benefit  and  a  blessing  on  the  State.  We  call  upon  you 
to  act  as  citizens  of  Louisiana.  It  is  your  duty  to  pro- 
tect life  and  health,  and  to  promote  the  comfort  and 
prosperity  of  the  entire  people.  You  cannot  discharge 
the  duty  with  regard  to  New  Orleans  without  doing  good 
to  every  other  part  of  the  State.  Deprive  New  Orleans 
of  your  proper  protection  and  guardianship,  and  the  whole 
commonwealth  suffers.  We  are  bound  together  insepa- 
rably, one  in  heart,  one  in  feeling,  one  in  interest,  and  we 
call  upon  you  to  exercise  the  power  that  is  vested  in  you 
for  the  good  of  all."  Was  that  constitutional,  right,  and 
patriotic,  judges  ? 

Suppose,  instead  of  being  here,  you  had  been  members 
of  the  legislature.  Suppose  an  appeal  of  that  kind  had 
come  to  you  from  good  and  true  men.  What,  I  ask, 
would  you  have  done  ?  What  would  you  do  if  called  on 
now  to  act  under  such  circumstances  ?  Refer  it  to  a  com- 
mittee to  take  full  evidence  on  the  subject,  and  to  report ; 
and  when  that  report  should  be  fairly  before  you,  then 
you  would  do  that  under  the  Constitution  which  the  public 
good  might  demand.  That  is  the  part  of  wisdom  ;  that  is 
the  part  of  honor  ;  that  is  the  part  of  American  patriot- 
ism; that  is  the  duty  of  the  legislator  true  to  liberty  and 
law.  I  am  not  talking  now  of  wild,  abstract  notions  of 
liberty,  —  that  a  man  has  by  nature  the  right  or  liberty 
to  do  whatever  he  desires,  irrespective  of  the  rights  and 
liberties  of  other  men  ;  such  impracticable  notions,  pushed 
to  excess,  lead  only  to  crime  and  ruin,  —  but  I  am  speak- 
ing this  day  for  liberty  regulated  by  law.  I  love  liberty 
everywhere,  and  at  all  times,  —  such  as  she  is  depicted  in 
the  classic  pages  of  Home  and  Greece,  as  she  has  been 
exhibited  in  England  and  in  other  lauds  ;  but  the  liberty 


74   ARGUMENT  IN   THE   SLAUHGTER-HOUSE   CASES. 

I  love  and  advocate  above  all  is  American  liberty,  sup- 
ported by  constitutions  and  laws.  Lawless  liberty  is 
mere  licentiousness  ;  where  law  ends  tyranny  begins. 

Then,  sirs,  when  you  are  called  upon  to  consider  the 
action  of  the  legislature  on  this  matter,  it  is  just  to  look 
into  the  documents  of  which  I  have  spoken  in  a  general 
way  ;  and,  first,  I  will  read  from  the  report  of  the  grand 
jury,  August  14,  I860.  It  states :  "  In  consideration 
of  the  prevalence  of  cholera  and  other  diseases  in  our 
midst,  the  grand  jury  makes  a  special  report  upon  the 
impurity  of  the  water  taken  from  the  river  and  supplied 
by  pipes  to  the  city,  caused  by  throwing  offal,  refuse  from 
slaughter-houses,  etc.,  into  the  river  above  the  works  of 
the  water-works  company,  at  the  foot  of  Kichard  Street. 
The  superintendent  of  the  water-works  states  that  the 
suction  pipes  of  the  river  occasionally  become  clogged  by 
such  water  being  drawn  into  them,  requiring  constant  at- 
tention to  keep  their  orifices  clear.  Two  large  vessels  lie 
at  the  wharves  immediately  above  and  in  front  of  the  suc- 
tion pipes,  and  act  as  fenders  to  guide  the  floating  offal, 
etc.,  out  into  the  current.  When  they  have  been  loaded 
and  gone,  the  collection  of  effete  matter  will  naturally  in- 
crease as  in  an  eddy.  How  many  slaughter-houses  exist 
above  the  works  I  cannot  say  ;  but  their  entire  removal  to 
the  lower  part  of  the  city  would  be  a  public  benefit. 

"  A  petition  signed  by  more  than  five  hundred  of  our 
most  prominent  citizens  for  such  removal  of  slaughter- 
houses was  addressed  to  the  council  last  spring,  and  re- 
ported upon  favorably  by  the  committee  on  police  and 
health  of  the  lower  board  June  12,  1800  ;  but  the  resolu- 
tion submitted  by  them  failed  to  become  a  law,  and  the 
city  passed,  on  the  31st  July,  1800,  an  ordinance,  No. 
233,  N.  S,,  authorizing  the  erection  of  slaughter-houses  in 
the  Fourth  District,  although  under  the  health  ordinance 
(sec.  20),  approved  August  2,  1800,  they  are  expressly 


ARGUMENT  IN   THE   SLAUGHTER-HOUSE   CASES.    75 

forbidden.  Every  diligence  is  exercised  now  to  keep  the 
suction  pipes  clear  from  all  effete  substances,  and  after 
the  water  is  pumped  into  the  reservoirs  a  laborer  is  en- 
gaged throughout  the  day  in  skimming  the  scum  which 
forms  upon  the  surface." 

The  grand  jury  continue :  "  Many  persons  of  this 
city  (especially  the  poorer  classes,  amongst  whom  most  of 
the  deaths  of  cholera  have  lately  taken  place)  use  the  hy- 
drant water  for  drinking  and  other  purposes.  We  be- 
lieve that  the  water  must  be  impure  and  unhealthy,  and 
liable,  if  not  to  create  disease,  at  least  to  increase  that 
which  may  exist.  We  recommend  that  the  city  authori- 
ties should  take  this  matter  into  immediate  consideration, 
and  that,  besides  adopting  requisite  ordinances,  they 
should  petition  the  legislature  to  pass  an  act  that  there 
should  not  be  allowed  to  exist  any  slaughter-houses,  or 
similar  places,  above  the  city  within  a  specified  number 
of  miles.  We  consider  such  an  act  of  the  legislature 
necessary,  because,  should  the  city  authorities  cause  the 
removal  of  such  establishments  from  the  upper  portions  of 
the  city,  they  could  be  reestablished  barely  above  the  city 
limits,  and  would  be  as  great  nuisances  then  as  now." 

I  read  from  the  journal  of  the  House :  "  Under  a  sus- 
pension of  the  rules  the  following  bill  was  brought  in  : 
'  An  act  to  protect  the  health  of  the  city  of  New  Orleans 
and  of  the  town  of  Algiers,  on  the  right  bank  of  the 
Mississippi  River,  parish  of  Orleans.'  " 

This  bill  is  very  like  the  act  of  1869.  It  was  read 
and  referred  to  a  committee.  That  committee  reported, 
"  from  personal  and  careful  observation,"'  as  also  "  from 
the  opinions  and  personal  experience  of  persons  thor- 
oughly competent  to  judge  on  the  question  ;  "  as  well, 
too,  as  from  "  a  petition  signed  by  eleven  hundred  re- 
spectable property-holders  of  New  Orleans,  urging  the 
removal  of  this  foul  nuisance." 


76    ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

"  The  first  question  which  arises  on  this  important 
matter  is,  what  becomes  of  the  immense  quantity  of  filth 
and  offal  which  is  accumulated  at  and  in  the  vicinity  of 
the  stock  landing?  The  result  of  our  investigations  is 
that  it  all  goes  into  the  Mississippi  River,  which,  if  not 
prejudicial  to  health,  is  certainly  very  revolting.  The 
immense  suction  pipe  of  the  New  Orleans  water-works 
is  immediately  below,  and  sucks  in  objects  floating  on 
the  water  at  a  distance  of  fifty  or  sixty  feet.  AVhen  the 
river  is  low,  it  is  not  uncommon  to  see  intestines  and 
portions  of  putrefied  animal  matter  lodged  immediately 
around  the  pipes.  The  liquid  portion  of  this  putrefied 
matter  is  sucked  into  the  reservoir.  Vessels  arriving 
here  with  cattle,  especially  those  that  have  been  in  a 
storm,  invariably  throw  the  dead  cattle  —  of  which  they 
often  have  many  —  into  the  river  at  the  stock  landing. 
These  are  again  taken  from  the  river  and  subjected  to 
the  process  of  skinning,  after  which  the  carcass  is  again 
thrown  into  the  river.  It  is  not  unusual,  during  the  sultry 
heat  of  the  summer  months,  to  see  these  floating  objects 
about  the  shipping,  no  doubt  causing  disease  among  the 
sailors  on  board  these  vessels.  There  is  not  the  slightest 
doubt  in  the  mind  of  your  committee  that  this  must  be 
extremely  prejudicial  to  the  health  of  New  Orleans.  To 
recapitulate,  we  would  state  that  the  two  subjects  which 
deserve  the  most  important  consideration  are  :  first,  the 
water  we  drink  is  contaminated  with  macerated  and  de- 
composed animal  matter,  and  is  a  constant  source  of 
disease  and  injury,  occasionally  acute,  but  generally  slow 
and  certain  :  second,  the  air  we  breathe  at  times  is 
contaminated  and  poisoned  by  the  lilth  from  different 
slaughter-houses,  —  blood,  urine,  and  other  refuse  matter, 
all  in  a  state  of  decomposition,  tin-own  into  the  water, 
floating  down  the  shore,  an  abominable  nuisance.'' 

I  refrain  from  reading  the  rest  of  this  report.      It  is  all 


ARGUMENT   IN  THE   SLAUGHTER-HOUSE   CASES.    77 

to  the  same  effect.  There  is  appended  to  the  report  a 
document  entitled  to  the  highest  respect,  from  the  charac- 
ter and  learning  of  the  persons  who  signed  it.  It  is 
a  certificate  from  the  president  of  the  Board  of  Health, 
J.  S.  Smith,  from  Dr.  Choppin,  and  from  J.  T.  Penning- 
ton,  and  it  corroborates  the  conclusions  of  the  committee. 
TTith  this  evidence  before  us,  I  need  not  add  a  word  to 
refute  the  reckless  and  groundless  assertion  by  the  coun- 
sel on  the  other  side,  that  there  is  nothing  in  this  ques- 
tion that  concerns  the  health  of  the  city  of  New  Orleans ; 
that  the  legislature,  when  they  acted  on  this  information, 
and  passed  the  act  of  1869,  entitling  it  "  An  act  to  pro- 
tect the  health  of  the  city  of  New  Orleans,"  etc.,  were 
guilty  of  falsehood,  and  acted  in  bad  faith  and  corruptly. 
But  let  me  go  further,  and  refer  more  fully  to  the 
title  and  to  the  body  of  this  act  of  1869,  which  is  bitterly 
denounced.  The  title  commences,  "  An  act  to  protect  the 
health  of  the  city  of  New  Orleans,"  etc.  Is  that  a  proper 
subject  of  legislation  ?  Does  it  fall  within  the  police  power 
of  a  sovereign  State  to  adopt  measures  for  the  protection  of 
public  health  ?  The  title  continues,  "To  locate  the  stock 
landing  and  slaughter-house."  I  have  shown  that,  in 
point  of  fact  and  in  the  opinion  of  the  legislature,  the 
location  of  the  stock  landing  and  slaughter-houses,  im- 
mediately above  the  water-works  and  above  the  city,  was 
injurious  to  the  health,  comfort,  safety,  and  prosperity 
of  its  inhabitants,  and  imperiously  demanded  legislative 
action.  Does  the  act  of  1869  cease,  then,  to  be  an  act 
to  protect  the  health  of  the  city  of  New  Orleans,  because 
it  goes  further  and  wisely  locates  a  stock  landing  and 
slaughter-house  elsewhere  ?  To  carry  into  effect  these 
objects,  the  legislature  deemed  it  prudent  to  charter  a 
company,  and  therefore  added  to  and  concluded  the  title 
with  the  words  "  and  to  incorporate  the  Crescent  Live 
Stock  Lauding  and  Slaughter-House  Company."  That  is 


78    ARGUMENT   IX   THE   SLAUGHTER-HOUSE   CASES. 

the  title  of  the  act.  Is  there  anything  in  it  that  is  un- 
constitutional and  destructive  of  rational  liberty  ?  I  am 
speaking  of  the  practical  operation  of  a  free  constitutional 
government,  to  you  who  are  to  judge  of  the  action  of 
public  functionaries.  Is  there  any  impropriety,  any 
ground  for  charging  legislators  with  frauds,  in  the  mere 
passage  of  the  act  under  the  circumstances  which  have 
been  detailed? 

It  is  said,  there  is  no  doubt  that  the  legislature  could 
have  erected  slaughter-houses  ;  could  have  exacted  fees 
and  tolls,  and  made  persons  pay  for  the  use  of  facilities 
afforded  them  by  the  State,  in  the  exercise  of  its  power 
to  protect  the  general  health  and  advance  the  comfort 
and  welfare  of  the  people  of  New  Orleans.  What !  do 
you  admit  that  ?  And  will  you  yet  undertake  to  say  that 
if  the  position  of  public  affairs  is  such  that  it  is  not  con- 
venient for  the  State  to  use  a  million  of  dollars  or  more 
for  such  a  purpose,  the  State  cannot  create  a  corporation, 
with  limited  franchises  and  restrictions,  under  constitu- 
tional authority,  for  the  purpose  of  doing  that  which, 
while  it  advances  the  private  interests  of  the  corporators, 
subserves  the  public  good? 

The  power  of  creating  a  corporation  may  be  properly 
used  for  the  purpose  of  attaining  a  public  and  useful  end. 
AVhen  the  end  is  legitimate  and  within  the  scope  of  the 
Constitution,  the  means  winch  are  appropriate  and  plainly 
adapted  to  this  end,  and  which  are  not  prohibited,  are 
lawful.  Private  corporations  have  been  deemed,  in  cer- 
tain eases  and  in  certain  respects,  public  agents.  There 
is  no  doubt  of  the  constitutional  doctrine  on  this  subject, 
or  of  the  policy  adopted  by  this  State.  Was  the  lighting 
of  the  streets  in  Xew  Orleans  deemed  of  public  impor- 
tance and  use  ?  A  gaslight  company  was  incorporated. 
AVas  wholesome  water  a  public  necessity?  The  water- 
works company  was  incorporated.  Is  a  railroad  —  through 


ARGUMENT  IN  THE   SLAUGHTER-HOUSE   CASES.    79 

the  streets  of  a  city,  or  between  different  parts  of  the 
State,  or  between  Louisiana  and  other  States  —  wanted  for 
public  convenience  and  commerce  ?  A  corporation  is 
established.  Who  in  this  country  doubts  the  power  of 
the  legislature  in  these  cases  ?  I  speak  not  of  visionary 
theorists  wandering  in  the  fogs  of  metaphysical  abstractions 
of  absolute  liberty,  but  of  practical  American  statesmen 
and  judges.  In  our  country,  when  a  large  and  consoli- 
dated capital  is  necessary  to  accomplish  works  important 
to  the  public  good,  it  is  quite  customary  for  the  States 
to  grant  charters  of  incorporation  to  private  individuals, 
with  special  and  often  exclusive  privileges,  to  effect  that 
end.  And  this  has  been  a  means  of  making  the  gigantic 
improvements  which  private  enterprise,  directed  by  pru- 
dence and  aided  by  scientific  and  mechanical  knowledge 
and  skill,  has  successfully  and  beneficially  made  through- 
out the  Union.  Will  it  be  said,  Massachusetts  can  do 
this,  Xew  York  can  do  this,  the  young  and  giant  State 
of  Illinois  can  do  this,  and,  with  proper  limitations  and 
restrictions  of  the  privileges  and  the  profits  and  emolu- 
ments of  the  corporations,  can  do  this  to  the  promotion  of 
the  people's  comfort  and  weal  ?  But  liberty  is  destroyed 
and  the  Constitution  is  violated  when  in  Louisiana  her  leg- 
islature, exercising  police  power,  incorporates  a  company 
to  erect,  in  aid  of  the  health,  comfort,  and  prosperity  of  her 
citizens,  an  abattoir,  and  confers  upon  the  company  the 
right  to  charge  those  who  use  it  a  reasonable  fee  or  re- 
muneration, limited  by  the  charter,  for  the  advantages  and 
facilities  furnished  them  by  the  outlay  of  the  company's 
capital  in  lands,  buildings,  machinery,  etc. 

I  need  not  refer  to  the  judicial  decisions  cited  by  my 
colleague  on  this  subject,  nor  to  the  numerous  legislative 
precedents  in  our  statutes.  The  current  of  authority  is 
strong  and  unbroken  against  the  assertion  and  against  the 
doctrine  that  no  exclusive  right  can  be  conferred  upon  a 


80    ARGUMENT  IN   THE   SLAUGHTER-HOUSE   CASES. 

corporation.  I  will  notice  a  single  case  that  has  not  yet 
been  commented  on.  The  Pontchartrain  Railroad  Com- 
pany was  incorporated  in  1830  witli  "  the  exclusive  right 
and  privilege  of  constructing  and  using  a  railroad  or  rail- 
way to  and  from  the  city  of  New  Orleans  and  to  and  from 
Lake  Pontchartrain  for  and  during  twenty-five  years." 
Some  years  after  this  time  the  New  Orleans  and  Carroll- 
ton  Railroad  Company  was  incorporated  to  construct  a 
railroad  between  the  city  of  New  Orleans  and  a  point 
at  Carrollton  on  the  Mississippi  River;  and  still  subse- 
quently, in  1840,  the  legislature  incorporated  the  Jefferson 
and  Lake  Pontchartrain  Railway  Company  for  the  con- 
struction of  a  railway  from  Carrollton  to  Lake  Pontchar- 
train. These  two  companies  united  to  transport  freight 
and  passengers  between  New  Orleans  and  the  lake.  In 
June,  1853,  the  Pontchartrain  Company  instituted  suit  to 
restrain  the  two  companies  from  transporting  freight  and 
passengers  to  and  from  the  lake,  and  to  recover  damages 
for  their  violation  of  its  exclusive  right ;  and  this  Court 
decided  that  the  legislature  had  granted  an  exclusive 
right  or  monopoly  to  the  plaintiffs  for  twenty -five  years, 
that  the  grant  was  valid,  and  that  the  plaintiffs  therefore 
were  entitled  to  the  injunction  and  to  recover  the  damages 
thev  had  sustained,  and  gave  iudgment  accordingly,1 

•/  O  J  O  O     J 

My  colleague,  in  opening  this  case,  analyzed  the  act  of 
18G9,  and  placed  its  leading  provisions  so  clearly  before 
the  Court  as  to  render  futile  the  erroneous  construction 
and  statements  that  have  since  been  urged  against  it.  He 
showed  that  the  law  provided  for  the  establishment  of  one 
place  for  an  abattoir,  where  alone,  "solely  and  exclusively," 
cattle  intended  for  the  New  Orleans  market  should  be 
slaughtered  ;  that  it  conferred  no  exclusive  privilege  on 
the  company  to  slaughter  such  cattle,  but  compelled  it 
to  furnish  whatever  is  essential  to  the  convenience  and 
1  La.  An.  Reports,  -!.jG. 


ARGUMENT  IN  THE   SLAUGHTER-HOUSE   CASES.    81 

accommodation  of  the  butchers  for  killing  their  cattle, 
cleaning  and  taking  them  away,  to  dress  and  prepare 
their  meat  for  food.  When,  then,  it  is  said  that  the  act 
drives  one  thousand  butchers  from  their  business  and  de- 
prives them  of  the  right  to  follow  their  ordinary  occupation, 
the  assertion  is  plainly  and  palpably  untrue.  Undoubtedly, 
as  the  effect  of  machinery  is  to  become  a  substitute  for 
manual  labor,  the  introduction  of  machines  must  for  a  sea- 
son throw  some  persons  out  of  employment,  but  experi- 
ence teaches  that  it  tends  eventually  to  the  good  of  all. 
One  man  at  the  slaughter-house,  by  the  aid  of  its  machin- 
ery, may  do  as  much  as  it  would  have  required  ten  men  to 
perform  without  that  aid  ;  and  thus  labor  may  be  saved, 
or  performed  more  cheaply  and  more  accurately.  But 
this  is  no  argument  against  the  improvement.  If  it  were, 
all  improvement  would  stop.  However,  in  the  present  in- 
stance no  butchers  are  thrown  out  of  employment.  They 
are  facilitated  in  their  work,  and  carry  on  their  trade 
and  art  as  heretofore  after  the  slaughter-house  company 
has  afforded  them  aid  in  killing  their  cattle,  a  work  which 
they  may  perform  themselves  or  employ  any  other  to  per- 
form for  them.  But  it  has  been  vehemently  asserted  that 
the  act  of  1869  conferred  upon  seventeen  individuals,  un- 
worthy and  unknown,  an  odious,  oppressive,  and  arbitrary 
power  to  exact  fees  and  perquisites  from  the  butchers 
without  furnishing  any  consideration  for  the  same,  and 
that  every  one  of  the  seventeen  was  guilty  of  bribery  in 
procuring  the  passage  of  the  act,  and  ought  now  to  be  in 
the  penitential1}'.  Counsel  after  counsel  has  reiterated 
these  charges  before  you,  judges,  and  persisted  in  declar- 
ing that  nothing  has  been  done  to  entitle  the  company  to 
any  remuneration.  Is  this  true?  No.  False!  False! 
False  !  Is  it  nothing  to  have  purchased  land,  to  have 
erected  on  it  buildings,  slaughter-houses,  sheds,  pens,  etc., 
to  have  furnished  machinery  sufficient  for  all  the  pur- 
6 


82   ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

poses  of  the  abattoir,  and  to  have  employed  faithful  and 
skillful  persons  to  keep  everything  in  order  and  to  furnish 
the  butchers  with  every  facility  ?  Is  it  nothing  to  have 
done  this  promptly  and  faithfully,  at  the  expense  of  an 
immense  outlay  of  money  and  in  strict  conformity  with 
the  law  ?  The  company  is  entitled  to  no  fees.  It  de- 
mands and  receives  no  remuneration  except  from  those 
who  use  the  facilities  which  it  affords,  and  who  are  bound 
in  law  and  justice  to  pay  according  to  the  rate  established 
by  legislative  judgment.  The  charge  of  bribery  against 
every  member  of  the  company  is  indignantly  denied  and 
denounced  as  a  calumny. 

It  has  been  argued  that  the  act  is  unconstitutional  in 
prescribing  that  the  cattle,  etc.,  shall  be  landed  at  a  par- 
ticular part  of  the  bank  of  the  Mississippi,  and  that  the 
owners  shall  pay  for  the  facilities  afforded  them  in  the 
wharves,  etc.,  erected  there,  and  that  the  act  of  Congress 
of  1812  and  our  own  civil  code  make  the  river  free,  and 
give  every  one  a  right  to  land  and  unload  his  vessels  on  its 
banks  without  charge.  This  matter  has  been  settled  by 
custom,  by  good  sense,  and  by  the  judgments  of  the  high- 
est tribunals.  Do  you  not,  judges,  in  walking  along  the 
levee,  see  one  place  used  for  the  landing  of  small  vessels, 
another  for  large  sea-going  vessels  ;  one  place  for  river 
steamers,  another  for  ocean  steamers  ;  flatboats  dischar- 
ging their  coal  and  other  freight  in  different  designated 
places?  It  necessarily  follows  that  in  the  exercise  of  po- 
lice power  there  must  be  a  regulation  of  these  tilings  in 
order  that  business  may  be  carried  on  conveniently  and 
without  constant  disputes.  The  Supreme  Court  of  the 
United  States  has  said,  "  Regulations  of  this  kind  are  ne- 
cessary and  indispensable  for  the  convenience  and  safety 
of  commerce,  and  local  authorities  have  a  right  to  pre- 
scribe at  what  wharf  a  vessel  may  lie  and  unload  and  take 
on  board  particular  cargoes."  The  Supreme  Court  of  the 


ARGUMENT  IN  THE   SLAUGHTER-HOUSE   CASES.    83 

State  held  that  the  municipalities  of  New  Orleans  might 
charge  for  the  facilities  afforded  commerce  in  the  shape 
of  wharves,  laying  it  down  as  a  fundamental  rule  that  if 
the  State  had  erected  them  there  could  be  no  doubt  of  its 
right  to  impose  the  wharfage.  Similar  doctrines  and 
views  were  recognized  in  the  Navigation  Company  case, 
and  the  reports  of  the  Supreme  Courts  of  the  United  States 
abound  in  authorities  on  the  point,  and  establish  that  such 
a  regulation  is  a  matter  of  police,  and  not  of  commerce, 
and  is  not  only  consistent  with,  but  essential  to,  the  enjoy- 
ment of  rational  liberty  in  the  matter. 

But  it  has  been  contended  that  the  act  of  18G9  inter- 
feres with  the  liberty  of  labor  and  the  liberty  of  property. 
The  butchers  have  exercised  their  art  and  business  for 
many  long  years  in  Jefferson,  and  have  there  slaughter- 
houses and  pens.  They  have  a  right  to  continue  to  use 
their  property  as  they  hitherto  have  done.  Their  right  of 
property  is  absolute,  and  so  is  their  right  of  labor.  The 
State  cannot  interfere  with  them.  The  act  deprives  them 
of  the  power  to  support  themselves  and  their  families  by 
an  unconstitutional  interference  with  their  liberty,  —  lib- 
erty to  work  and  carry  on  their  business  where  they  please, 
liberty  to  use  their  property  as  they  please.  There  is  a 
law  higher  even  than  the  written  constitution,  a  law  recog- 
nizing the  right  of  every  man  to  labor,  to  receive  the  re- 
ward of  his  industry,  to  use  the  property  he  has  acquired, 
and  every  infringement  of  that  law  is  a  violation  of  vested 
rights.  This  is  a  mere  repetition  of  every  argument  that 
has  been  made  against  the  exercise  of  the  police  power  in 
our  State.  The  reports  are  full  of  cases  in  which  the 
very  question  has  been  examined  and  decided  in  regard  to 
nuisances  in  this  city,  and  the  constitutional  and  legal 
power  has  been  invariably  sustained. 

There  is  one  case  of  a  very  striking  character  in  which 
the  argument  was  like  that  used  in  the  present  suit.  An 


84    ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

oysterman  had  pursued  his  business  in  New  Orleans,  and 
had  been  in  the  habit  of  selling-  his  oysters  in  his  own 
private  house.  The  municipal  council  passed  an  ordi- 
nance forbidding  the  sale  of  oysters  in  the  city  except  at 
particular  places,  but  the  oysterman  continued  to  sell  at 
his  own  house,  regardless  of  the  ordinance.  The  city  in- 
stituted a  suit  against  him  for  the  violation  of  its  regula- 
tion, and  Judge  Preston  defended  him.  I  need  not  tell 
this  Court  that  he  was  a  man  of  genius,  of  singular  sim- 
plicity and  largeness  of  mind,  a  profound  thinker,  of  great 
purity  in  private  life,  but  an  enthusiast,  inclined  to  that 
species  of  republican  radicalism  which  carries  to  an  ex- 
treme general  doctrines  of  liberty.  The  district  court 
decided  against  his  client,  and  to  the  question,  "  What ! 
Shall  I  not  open  and  sell  rny  oysters  in  my  own  house  that 
I  have  used  for  that  purpose  for  so  many  years  ? "  an- 
swered, "  No,  because  they  who  are  to  regulate  this  matter 
declare  it  a  nuisance."  The  case  came  before  the  Supreme 
Court.  It  was  contended  for  the  oysterman  that  the  trade 
was  useful  to  all  those  engaged  iu  it,  —  it  was  necessary 
for  the  support  of  their  families  ;  that  the  defendant  had 
been  in  the  habit  of  selling  oysters  in  his  house  for  twenty 
years  ;  that  the  ordinance  interfered  with  the  freedom  of 
property  and  of  labor  in  an  honest  pursuit,  that  of  fisher- 
men ;  and  why  not,  it  was  asked,  in  shell-fish  as  with  iish 
with  scales  ?  The  ordinance  created  a  monopoly  in  the 
business.  An  appeal  was  made  to  the  highest  principles, 
to  the  right  of  every  man  to  labor  for  himself,  to  use  his 
own  property,  and  to  receive  the  fruits  of  his  labor  and 
use  of  that  without  interference  from  the  council.  The 
court  decided  that  it  was  a  proper  matter  to  be  entrusted 
to  the  common  council  of  the  city,  who  had  the  right  to 
.say  where  oysters  should  be  sold  and  where  they  should 
not,  and  they  gave  judgment  against  the  defendant. 

The  counsel  for  the  butchers  have  read  with  emphasis, 


ARGUMENT  IN   THE   SLAUGHTER-HOUSE   CASES.    85 

as  applicable  to  this  case,  a  passage  from  Cooley's  Constitu- 
tional Limitations  :  "  The  man  or  the  class  forbidden  the 
acquisition  or  enjoyment  of  property  in  the  manner  per- 
mitted to  the  community  at  large  would  be  deprived  of 
liberty  in  matters  of  primary  importance  to  his  or  her 
pursuit  of  happiness."  It  is  difficult  to  see  the  applica- 
bility of  this  quotation  to  the  present  case,  but  if  the 
counsel  had  only  read  the  next  paragraph  he  would  have 
found  the  following  passage  :  "  There  are  unquestionably 
cases  in  which  the  State  may  grant  privileges  to  specified 
individuals  without  violating  any  constitutional  principle, 
because  from  the  nature  of  the  case  it  is  impossible  they 
should  be  possessed  and  enjoyed  by  all ;  and  if  it  is  im- 
portant that  they  should  exist,  the  proper  state  authorities 
must  be  left  to  select  the  guarantees.  Of  this  class  are 
grants  of  the  franchise  to  be  a  corporation." 

If  this  Court  desired  authority  upon  so  plain  a  matter, 
T  do  not  know  where  it  can  be  found  more  fully  and  bet- 
ter explained  than  in  the  following  extract  from  the 
ablest  judges  and  constitutional  jurists  of  the  land  :  "  The 
police  power  affects  the  use  and  enjoyment  of  property. 
It  is  much  easier  to  perceive  and  realize  the  existence  and 
sources  of  this  power  than  to  mark  its  boundaries  or  pre- 
scribe limits  to  its  exercise.  It  extends  to  the  protection 
of  the  lives,  limbs,  health,  comfort,  and  quiet  of  all  persons 
and  the  protection  of  all  property  within  the  State.  Ac- 
cording to  the  maxim,  '  /V/c  utere  tuo  ut  cdienum  non 
ZftcZa.s,'  etc.  By  this  general  police  power  of  the  State, 
persons  and  property  are  subjected  to  all  kinds  of  re- 
straints and  burdens  in  order  to  secure  the  general  com- 
fort, health,  and  prosperity  of  the  State,  of  the  perfect 
right  in  the  legislature  to  do  which  no  question  ever  was, 
or  upon  acknowledged  general  principles  ever  can  be 
made,  so  far  as  natural  persons  ai'e  concerned.  But  though 
property  be  protected,  it  is  still  to  be  understood  that  the 


86    ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

lawgiver  has  a  right  to  prescribe  the  mode  and  manner  of 
using  it,  so  far  as  may  be  necessary  to  prevent  the  abuse 
of  the  right  to  the  injury  or  annoyance  of  others  or  of  the 
public.  The  government  may,  by  general  regulations, 
interdict  such  uses  of  property  as  would  create  nuisances, 
and  become  dangerous  to  the  lives  or  health  or  peace  or 
comfort  of  the  citizens.  Unwholesome  trades,  slaughter- 
houses, operations  offensive  to  the  senses,  the  deposit  of 
powder,  the  application  of  steam  power  to  propel  cars, 
the  building  with  combustible  materials,  and  the  burial  of 
the  dead  may  all  be  interdicted  by  law  in  the  midst  of 
dense  masses  of  population,  on  the  general  and  rational 
principle  that  every  person  ought  so  to  use  his  property 
as  not  to  injure  his  neighbors,  and  that  private  interests 
must  be  made  subservient  to  the  general  interests  of  the 
community.'' 1 

The  time  allotted  to  me  for  a  reply  to  the  opposite  coun- 
sel is  drawing  to  a  close,  and  I  am  reminded  by  my  col- 
league who  sits  beside  me  that  it  is  important  to  notice 
another  point.  The  counsel  for  the  butchers  have,  with 
great  boldness  and  effrontery,  undertaken  to  say  here, 
over  and  over  again,  that  they  had  charged  and  offered  to 
prove  that  members  of  the  legislature  that  passed  this  act 
had  been  bribed  to  vote  for  it,  and  that  if  the  slaughter- 
house company  had  not  shrunk  from  it  those  members  of 
the  legislature  and  the  seventeen  corporators  mentioned 
in  the  act  would  have  been  in  the  penitentiary.  I  deny 
it.  There  has  never  been  any  legal  charge  made  in  a 
form  susceptible  of  legal  proof.  There  has  never  been 
any  proposal  of  proof,  except  in  such  vague  and  indefinite 
terms  as  amounted  to  a  vain  parade  or  mockery.  They 
pretend  that  my  clients  shrank  in  fear  from  the  investiga- 
tion. You  shrink  and  you  skulk.  You  skulk  behind  a 
general  railing  and  informal  accusation.  You  say  mem- 
1  -2  Kent,  43l>. 


ARGUMENT   IN  THE   SLAUGHTER-HOUSE   CASES.    87 

bers  of  the  legislature  were  bribed.  Tell  us  who  they 
are.  Name  them.  Name  any  one.  You  say  you  have 
witnesses  to  prove  it.  Who  are  the  witnesses  ?  Let  us 
have  their  names.  It  will  not  do  to  come  in  here  and  say, 
"We  are  ready  to  prove  the  whole  body  was  bribed."  It 
is  the  height  of  injustice  thus  to  indulge  in  indistinct, 
general,  and  malignant  accusations.  You  say  you  know 
the  individuals  who  are  guilty.  Are  you  men  ?  Have 
you  the  courage  of  men  ?  Go  to  the  criminal  court ;  give 
information  against  them.  You  say  these  men  ought  to 
be  in  the  penitentiary.  Why  not  do  your  duty  and  have 
them  put  there  ?  If  you  are  prepared  with  proof  for  con- 
viction, patriots  and  friends  of  public  justice,  why  do  you 
not  use  the  law  against  these  high  offenders  ?  The  courts 
of  criminal  jurisdiction  are  open  for  their  prosecution  and 
punishment.  Do  you  want  an  illustrious  precedent  for 
the  course  ?  You  will  find  it  in  the  life  of  Cato,  the 
censor,  a  man  of  wisdom  and  of  severe  public  and  private 
virtue ;  a  man  of  truth,  justice,  and  public  spirit.  Imi- 
tate him,  and  the  community  will  believe  there  is  some- 
thing worthy  of  consideration  in  your  charges,  and  that 
they  are  not  a  shallow  pretext  for  slander  and  the  support 
of  an  unjust  case.  This  is  the  patriotic  and  practical 
course.  The  proposition  for  disregarding  the  legislative 
department,  and  putting  it  under  the  feet  of  the  judiciary, 
betrays  a  spirit  alien  to  law  and  kindred  to  the  worst 
radicalism. 

Has  this  Court  power  to  inquire  into  the  motives  and 
conduct  of  the  legislature  in  passing  the  act  ?  Under  the 
theory  of  free  government,  the  powers  of  government  are 
distributed  into  three  departments,  which  should  be  kept 
as  separate  from  and  independent  of  each  other  as  the 
nature  of  such  governments  will  admit.  In  the  former 
constitutions  of  this  State,  this  distribution  of  powers  was 
distinctly  and  expressly  made.  In  the  present  constitu- 


88   ARGUMENT  IN   THE   SLAUGHTER-HOUSE   CASES. 

tion  there  is  no  article  expressly  making  such  a  distribu- 
tion, but  the  distribution  is  practically  and  substantially 
made  into  the  legislative,  executive,  and  judicial  depart- 
ments. There  would  be  no  reliance  upon  the  stability  of 
the  law,  if  its  vitality  and  force  were  to  be  suspended  and 
hindered  by  railing  accusations  against  the  members  of 
the  legislature  who  passed  it,  not  contemplating  penal 
justice,  but  having  only  in  view  the  private  interests  of  a 
suitor  acting  under  the  influence  of  motives  of  whatever 
nature  may  be  supposed.  The  legislature,  under  such  a 
theory,  would  cease  to  be  independent,  and  the  judiciary, 
ceasing  to  be  mere  interpreters  of  the  law,  would  practi- 
cally become  the  makers  of  it.  All  security  for  liberty 
and  property  would  be  disturbed  or  destroyed,  and  confu- 
sion and  distrust  lead  the  way  to  general  demoralization. 
Our  government  is  founded  upon  the  theory  of  confidence 
in  the  virtue  of  man  and  the  power  of  public  sentiment. 
We  have  been  asked,  If  the  legislature  should  prove  base 
enough  to  pass  a  law  under  the  influence  of  bribes,  and 
the  judiciary  cannot  inquire,  upon  a  general  accusation, 
into  the  motives  of  the  legislature,  what  is  left  to  the  citi- 
zen ?  We  answer,  Nothing  but  an  appeal  to  public  sen- 
timent. Change  the  members  ;  purify  the  temple  of 
legislation  :  repeal  what  ought  to  be  repealed  ;  correct 
injustice  ;  indemnify  loss  through  public  wrong. 

No  human  institution  is  perfect.  The  system  of  Amer- 
ican government  has  its  defects,  but  it  would  be  madness, 
on  account  of  temporary  evil,  to  throw  off  established  gov- 
ernment and  remove  the  ancient  landmarks  of  liberty. 
We  have  been  told  there  are  a  great  many  decisions  to 
show  that  the  Court  has  power  to  enter  upon  the  inquiry. 
I  ask  for  one  decision  :  name  it,  produce  it.  I  say  such  a 
thing  has  never  been  done.  You  are  bound  to  suppose 
members  of  the  legislature  honest.  You  are  bound  to 
suppose  they  act  from  patriotic  motives.  You  cannot 


ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES.    89 

listen  to  a  charge  against  them  preferred  in  this  way. 
What !  are  you  a  separate  department  of  the  govern- 
ment? Are  you,  whose  judicial  function  it  is  to  interpret 
the  laws,  —  are  you  to  undertake  to  say  the  legislature 
passed  such  a  law,  but  they  were  very  foolish  ?  The  legis- 
lature passed  such  another  law,  but  they  did  not  know 
what  they  were  about,  and  therefore  we  will  declare  it  is 
not  the  law. 

I  do  not  deny  the  power  and  the  duty  of  the  Court  to  de- 
clare an  unconstitutional  law  void.  On  the  contrary,  I  hold 
it  to  be  the  distinguishing  mark  and  glory  of  American 
liberty  that  the  power  and  the  duty  exist.  But  I  hold 
that  the  Court  cannot  impute  to  the  legislature  any  other 
but  public  motives  for  their  acts.  In  the  very  authority 
quoted  by  our  opponents  it  is  said  :  "  And  although  it 
has  sometimes  been  urged  at  the  bar  that  the  courts 
ought  to  inquire  into  the  motives  of  the  legislature  where 
fraud  and  corruption  were  alleged,  and  annul  their  action 
if  the  allegation  were  established,  the  argument  has  in  no 
case  been  acceded  to  by  the  judiciary,  and  they  have 
never  allowed  the  inquiry  to  be  entered  upon."  It  is 
said :  '•  The  powers  of  the  three  departments  are  not 
merely  equal ;  they  are  exclusive  in  respect  to  the  duties 
assigned  to  each.  They  are  absolutely  independent  of 
each  other.  It  is  now  proposed  that  one  of  the  three 
powers  shall  institute  an  inquiry  into  the  conduct  of  an- 
other department  and  form  an  issue  to  try  by  what  mo- 
tives the  legislature  were  governed  in  the  enactment  of  a 
law.  If  this  may  be  done,  we  may  also  inquire  by  what 
motives  the  executive  is  induced  to  approve  a  bill  or  with- 
hold his  approval,  and  in  case  of  withholding  it  corruptly, 
by  our  mandate  compel  its  approval.  To  institute  the 
proposed  inquiry  would  be  a  direct  attack  upon  the  in- 
dependence of  the  legislature,  and  a  usurpation  of  power 
subversive  of  the  Constitution."  The  opposing  counsel 


90   ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

have  referred  to  the  history  of  Georgia,  where  a  corrupt 
act  was  passed  by  a  corrupt  legislature.  Granted.  Was 
it  not,  however,  decided  by  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Fletcher  r.  Peck,1  which 
grew  out  of  the  act,  that  it  was  impossible  to  look  into 
the  charge  of  corruption  preferred  against  the  members 
of  the  legislature  of  the  State  in  that  case  ?  Chief  Justice 
Marshall  said :  "  It  would  be  indecent  in  the  extreme, 
upon  a  private  contract  between  two  individuals,  to  enter 
into  an  inquiry  respecting  the  corruption  of  the  sovereign 
power  of  a  State.  If  the  title  be  plainly  deduced  from  a 
legislative  act,  which  the  legislature  might  constitutionally 
pass,  if  the  act  be  clothed  with  all  the  requisite  forms  of  a 
law,  a  court,  sitting  as  a  court  of  law,  cannot  sustain  a 
suit  brought  by  one  individual  against  another,  founded 
on  the  allegation  that  the  act  is  a  nullity,  in  consequence 
of  the  impure  motives  which  influenced  certain  members 
of  the  legislature  which  passed  the  law."  Mr.  Justice 
Johnson  delivered  a  separate  opinion  in  the  case.  He 
said  :  "  As  to  the  idea  that  the  grants  of  a  legislature  may 
be  void  because  the  legislature  are  corrupt,  it  appears  to 
me  to  be  subject  to  insuperable  difficulties.  The  acts  of 
the  supreme  power  must  be  considered  pure,  for  the  same 
reason  that  all  sovereign  acts  must  be  considered  just,  be- 
cause there  is  no  power  that  can  declare  them  otherwise. 
The  absurdity  in  this  case  would  have  been  strikingly 
perceived  could  the  party  who  passed  the  act  of  cession 
have  got  again  into  power  and  declared  themselves  pure, 
and  the  intermediate  legislature  corrupt.  The  security  of 
a  people  against  the  misconduct  of  their  rulers  must  lie  in 
the  frequent  recurrence  to  iirst  principles  and  the  imposi- 
tion of  adequate  constitutional  restrictions."' 

In  a  case  decided   in    Indiana  in   November,  1858,  the 
Court  said  :   "  It   is  averred   that  the    bill  was   passed   by 
1   (!  ('ranch,  87. 


ARGUMENT  IN   THE   SLAUGHTER-HOUSE   CASES.    91 

the  fraud,  corruption,  and  bribery  of  several  members  of 
the  legislature.  In  Wright  v.  Defrees,  8  Ind.  R.  298,  it 
was  held  that  this  Court  cannot  inquire  by  what  motives 
the  members  of  the  legislature  were  governed  in  the  en- 
actment of  a  law.  That,  however,  was  a  case  between 
citizens,  and  the  Court,  in  the  opinion  delivered,  use  this 
language :  '  We  say  nothing  as  to  what  rights  the  State 
may  have  in  a  case  of  this  kind.  The  State  is  no  party 
in  these  proceedings.'  Thus  the  Court  withholds  an  opin- 
ion in  regard  to  the  question  whether,  on  the  complaint 
of  the  State,  a  law  can  be  impeached  for  the  fraud,  etc., 
of  members  voting  for  it.  In  the  present  case  the  State 
is  the  plaintiff.  But  is  there  any  reason  why  she,  as  a 
party  litigant,  should  be  allowed  more  than  an  individual 
citizen  to  put  in  issue  the  conduct  and  motives  of  the 
legislature  or  any  of  its  members  ?  We  know  of  no  prin- 
ciple or  authority  upon  which  an  issue  of  that  character 
can,  in  any  case,  be  tried  before  a  judicial  tribunal.  To 
institute  such  an  inquiry,  as  said  in  Wright  v.  Defrees, 
would  be  a  direct  attack  upon  the  independence  of  the 
legislature,  and  an  usurpation  of  power  subversive  of  the 
Constitution."  The  Sunbury  and  Erie  Railroad  Co.  v. 
Cooper,  7  Am.  Law  Reg.  158. 

A  great  deal  has  been  said  about  monopoly.  No  one 
is  more  strongly  opposed  to  monopoly  in  general  than  I 
am.  It  leads  to  inequality  and  injustice,  interferes  with 
the  freedom  of  labor  and  the  true  spirit  of  the  common 
law.  Undoubtedly  the  courts  in  England  decided  against 
monopolies  in  the  cases  cited.  I  have  not  time  to  exam- 
ine them  severally.  They  fall  within  two  classes  :  first, 
monopolies  granted  by  the  crown  in  the  exercise  of  its 
pretended  royal  prerogative ;  and  second,  monopolies 
granted  without  authority,  and  in  violation  of  general 
rights,  by  corporations.  The  struggle  for  liberty  was  on 
the  part  of  the  people,  who  contended  that  they  alone 


92   ARGUMENT   IN   THE   SLAUGHTER-HOUSE   CASES. 

could  judge  and  determine  when  and  where  and  to  whom 
to  grant  peculiar  privileges,  and  that  the  power  could 
be  properly  exercised  only  through  Parliament,  either 
directly  or  indirectly  ;  and  the  people  were  victorious  in 
the  courts  and  in  Parliament.  In  the  long  list  of  cases 
produced  by  the  opposite  counsel,  there  is  not  one  in 
which  a  monopoly  created  by  act  of  Parliament  was 
decided  to  be  void.  The  power  of  the  people  to  grant 
them  is  fully  recognized  and  established.  We  have  been 
told  that  our  ancestors  brought  with  them  from  England 
their  common  law  rights  and  constitutional  principles. 
This  is  true  ;  but  while  bringing  with  them  the  valuable 
principles  of  English  law  for  the  protection  of  life,  liberty, 
and  property,  they  left  behind  whatever  they  considered 
worthless  and  bad.  They  brought  with  them  no  alle- 
giance to  crowned  heads  ;  no  royal  prerogative  to  suspend 
laws  and  grant  monopolies  to  favorites.  The  whole 
American  system  of  government  is  popular.  The  people 
underlie  and  control  every  department  of  it.  And  it  is  in 
support  of  the  power  of  the  people  and  for  the  preserva- 
tion of  American  liberty  that  I  raise  my  voice  against  the 
dangerous  doctrine  advanced  here  to-day.  I  have  lived 
to  see  these  doctrines  pushed  to  an  extreme  and  threat- 
ening the  stability  of  our  government,  when  the  people 
were  urged  to  nullify  the  tariff  laws  of  Congress,  because 
it  was  pretended  that  those  laws  tended  to  create  a  mo- 
nopoly. 

But  I  have  not  time  to  pursue  this  subject.  I  feel  it, 
however,  a  duty,  before  dismissing  it,  to  warn  you,  judges, 
of  the  attempt  in  this  case  to  make  you,  the  sworn  minis- 
ters of  the  law,  lend  your  authority  to  overturn  the  laws. 
It  is  said  that  this  act  is  void  because  it  was  approved 
by  the  governor  after  the  legislature  adjourned.  'I  his  ob- 
jection has  been  briefly  and  sufficiently  answered  by  my 
colleague,  who  has  referred  to  a  case  of  highest  authority, 


ARGUMENT  IN   THE   SLAUGHTER-HOUSE   CASES.    93 

and  decisive  upon  the  point,  in  21  N.  Y.  R.  517. l  The 
legislature  adjourned  on  the  4th  March,  and  fifty  acts 
of  the  session  of  1869  were  signed  on  or  before  that 
day.  Eighty-nine  acts  were  signed  after  the  adjourn- 
ment ;  among  them  \vere  the  revenue  bill  for  the  support 
of  the  government,  the  appropriation  bill,  the  education 
bill,  and  other  acts  necessary  to  the  existence  of  the  gov- 
ernment and  the  welfare  of  the  people.  You  are  asked 
by  the  architects  of  ruin  to  break  down  all  this  legisla- 
tion. 

It  has  been  argued  that  the  Court  must  treat  the  act  of 
1869  as  a  private  statute.  But  it  is  a  statute  passed  by 
the  State,  in  the  exercise  of  her  police  power  as  a  sover- 
eign, to  protect  the  public  health,  to  prevent  public  nui- 
sances, and  to  advance  the  comfort  and  prosperity  and 
business  of  this  city  and  of  this  State.  It  contains  provi- 
sions giving  penalties  to  the  State.  Such  a  statute  is 
clearly  a  public  statute.  The  latest  writers  upon  statutes 
in  our  own  country  declare  that  the  disposition  has  been, 
in  the  United  States,  to  enlarge  the  limits  of  the  class  of 
public  acts,  and  to  bring  within  it  all  acts  that  affect  the 
community  at  large  and  are  of  a  public  character. 

[Mr.  Hunt  was  here  informed  by  the  Court  that  the 
time  allowed  him  had  expired.] 

1  People  v.  Boweu. 


POLITICAL   AFFAIRS   IN   LOUISIANA. 

[In  1851,  Mr.  Hunt  delivered  the  following  speech  ut  a  Whig- 
mass  meeting  held  at  the  Poydras  Market  in  the  city  of  New 
Orleans.] 

FELLOW-CITIZENS,  —  It  is  a  long  time  since  I  have 
Lad  the  pleasure  of  meeting  and  communing  with  you  in 
a  body.  During  that  time  many  questions  of  great  im- 
portance and  delicacy,  touching  the  peace  and  harmony 
of  the  Union  and  the  very  existence  of  our  national  gov- 
ernment, have  arisen,  been  discussed,  and  finally  settled 
to  the  satisfaction  of  the  great  body  of  the  American  peo- 
ple, by  the  constitutional,  honorable,  and  expedient  mea- 
sures embraced  in  the  Compromise,  adopted  under  the 
lead  of  Clay  and  Webster,  Cass  and  Foote,  and  other 
distinguished  statesmen  and  patriots,  who,  whatever  may 
be  their  differences  on  matters  of  mere  party  politics, 
have,  by  their  magnanimous  conduct  on  this  occasion, 
entitled  themselves  to  the  gratitude  of  every  true-hearted 
American.  And  I  should  not  be  true  to  myself,  to 
liberty,  and  to  the  duty  which  I  owe  the  country,  if  I  re- 
frained from  rendering  them  the  humble  tribute  of  my 
applause.  During  that  time,  too,  the  State  of  Louisiana 
and  the  city  of  New  Orleans  have  remained  under  the 
regular  and  peaceable  operation  of  the  present  Constitu- 
tion of  the  State ;  but  I  regret  to  say,  fellow-citizens,  that 
we  have  failed  to  keep  pace  with  our  sister  States  in  the 
gi'eat  march  of  progress.  In  spite  of  the  natural  advan- 
tages which  the  city  of  New  Orleans  has  enjoyed,  she  has 
been  outstripped  in  the  race  of  improvement  by  New 


POLITICAL   AFFAIRS  IN  LOUISIANA.  95 

York,  and  Boston,  and  Baltimore,  and  Philadelphia,  and 
other  cities  of  the  Union.  Situated  not  far  from  the 
mouth  of  the  Mississippi,  with  nearly  half  of  the  States 
of  the  Union  at  one  time  tributary  to  her,  New  Orleans 
has,  within  the  last  five  years,  seen  a  large  portion  of  the 
rich  commerce  of  the  Northwest  gradually  taken  away 
from  her.  Though  she  has  increased  in  population  and 
wealth,  the  increase  has  been  small  in  comparison  with 
that  of  other  cities,  and  her  commerce,  if  it  has  not  de- 
clined, has  at  least  been  stationary. 

What  is  the  cause  of  this  ?  Why  is  it  that  New 
Orleans  has  been  thus  arrested  in  her  progress  ?  Why  is 
it  that  the  State  of  Louisiana,  with  her  fertile  soil  and 
great  natural  resources,  has  not  kept  pace  with  her  sister 
States  ?  The  cause  may  be  found  in  the  mal-government 
of  the  State.  The  Constitution  of  the  State  is  a  failure. 
The  Constitution  is  bad,  and  the  legislation  under  the 
Constitution  has  been  bad.  For  the  last  five  years  the 
government  of  Louisiana  has  been  a  failure.  I  do  not 
say  this  upon  the  spur  of  the  moment,  nor  do  I  speak  for 
rhetorical  effect.  I  have  carefully  watched  the  operations 
of  our  state  government,  and  long  weighed  and  studied 
these  things  ;  and  the  result  of  my  best  judgment  upon 
them  is,  that  we  have  been  retarded  in  our  progress  and 
paralyzed  in  our  action  by  the  Constitution  and  legisla- 
tion of  the  State.  The  Constitution  has  indeed  sat  like  a 
nightmare  on  the  bosom  of  Louisiana  and  prevented  her 
from  breathing  healthfully.  With  its  restrictions  and 
prohibitions,  it  has  fettered  the  enterprise  and  industry  of 
the  people,  and  caused  capital  to  seek  a  more  natural  and 
freer  home  elsewhere.  It  has  failed  entirely  in  answering 
the  purposes  for  which  it  was  framed ;  and  the  proper 
remedy  for  the  people  is  to  alter  it  or  to  abolish  it,  and 
to  substitute  a  new  Constitution  in  its  place.  I  propose 
to  say  something  on  these  subjects. 


96  POLITICAL   AFFAIRS   IN   LOUISIANA. 

The  Constitution  divides  the  powers  of  the  government 
into  three  departments, — legislative,  executive,  and  ju- 
dicial. The  legislative  department  is  defective,  the 
executive  department  is  defective,  and  the  judicial  de- 
partment is  defective.  The  whole  government  is  defec- 
tive. It  has  had  little  effect  for  good,  and  great  effect 
for  evil.  The  Constitution  provides  that  "representation 
in  the  House  of  Kepresentatives  shall  be  equal  and  uni- 
form, and  shall  be  regulated  and  ascertained  by  the 
number  of  qualified  electors."  This  is  fair  and  equitable. 
It  means  that  if  three  hundred  qualified  electors  in  Ope- 
lousas  or  in  Jefferson  are  entitled  to  a  representative, 
three  hundred  of  the  qualified  electors  in  New  Orleans 
are  also  entitled  to  a  representative.  This  is  republican 
equality.  But  when  the  Constitution  lays  down  the  rule 
in  relation  to  representation  in  the  Senate,  it  declares 
that  the  senators  "  shall  be  apportioned  among  the  sena- 
torial districts  according  to  the  total  population  contained 
in  the  several  districts.''  The  change  in  the  basis  of 
representation  here  made  was  intended  to  give  greater 
proportionate  weight  to  the  country  in  the  Senate  of  the 
State.  In  the  House,  the  number  of  qualified  electors 
forms  the  basis.  In  the  Senate  the  total  population, 
colored  and  white,  slave  and  free,  constitutes  the  basis. 
The  proportion  of  slaves  to  the  white  population  in  the 
country  is  much  larger  than  the  proportion  in  the  city. 
The  senatorial  basis  therefore  gives  an  evident  advantage 
to  the  white  population  of  the  country  over  the  white  pop- 
ulation of  the  city.  Without  stopping  to  dwell  upon  this, 
and  admitting  it  for  argument's  sake  only  to  be  republican 
and  just,  I  call  your  attention,  fellow-citizens,  to  the  man- 
ner in  which  the  Constitution  proceeds  to  apply  the  rule. 

After  declaring  that  senators  shall  be  apportioned 
according  to  the  total  population  contained  in  the  several 
senatorial  districts,  the  Constitution  provides,  "  that  no 


POLITICAL  AFFAIRS   IN   LOUISIANA.  97 

parish  shall  be  entitled  to  more  than  one  eighth  of  the 
whole  number  of  senators."  The  number  of  senators 
being  thirty-two,  no  parish  or  district  can  ever  be  en- 
titled to  more  than  four  senators.  This  is  evidently 
aimed  at  New  Orleans.  Her  population  entitled  her  to  a 
representation  of  at  least  one  fourth  of  the  number  of  the 
senators.  In  order  to  carry  out  this  injustice,  the  Con- 
stitution especially  provides  that,  in  apportioning  repre- 
sentation in  the  Senate,  "the  population  of  New  Orleans 
shall  be  deducted  from  the  population  of  the  whole  State, 
and  the  remainder  divided  by  twenty-eight,  and  the  result 
produced  thereby  shall  be  the  senatorial  ratio  entitling 
a  district  to  a  senator."  Thus,  one  man  in  any  other 
parish  of  the  State  was  made  politically  equal  to  two  men 
in  New  Orleans.  Is  this  republicanism,  equality,  justice  ? 
The  city  of  New  Orleans  is  divided  from  the  city  of 
Lafayette  by  Felicity  Road.  By  what  reason,  by  what 
principle  of  justice,  is  a  man  011  the  other  side  of  this 
division  line  made  equal  to  two  men  on  this  side  ?  Why 
is  the  resident  of  Ouachita  or  Jefferson  given  a  represen- 
tation in  the  Senate  double  that  of  a  resident  of  New 
Orleans?  It  has  been  said  by  Mr.  Taylor  and  others 
that  the  Constitution  extended  the  right  of  suffrage. 
Doubtless  this  is  true.  But  it  is  evident  that  in  extend- 
ing the  right  of  suffrage  the  Constitution  deprived  the 
electors  in  New  Orleans  of  the  object  of  that  right,  —  an 
equal  and  fair  representation  in  the  legislature.  And 
yet  Mr.  Taylor  and  Mr.  Dunbar  think  this  Constitution 
good  enough,  and  seek  to  obtain  the  votes  of  the  citizens 
of  New  Orleans,  while  at  the  same  time  they  are  en- 
deavoring to  uphold  a  Constitution  which  stigmatizes 
those  citizens  as  unworthy  of  equality  with  the  other  citi- 
zens of  this  State.  The  framers  of  the  Constitution  were 
not  satisfied  with  putting  this  stigma  alone  on  the  citizens 
of  New  Orleans.  They  went  still  further,  and  ordained 
7 


98  POLITICAL   AFFAIRS   IN   LOUISIANA. 

that  the  city  of  New  Orleans  should  stand  accursed  and 
proscribed, — that  the  very  soil  on  which  she  rests  shall 
be  considered  as  infamous  and  polluting,  and  that  the 
corrupt  and  pestilent  atmosphere  that  envelops  her  shall 
be  held  to  embrace  and  poison  the  surrounding  portions 
of  country  within  a  circle  of  sixty  miles.  They  provided 
that  the  General  Assembly  should,  within  a  month  of  the 
first  session  under  the  Constitution,  designate  and  fix  the 
seat  of  government  at  some  place  not  less  than  sixty  miles 
from  New  Orleans  ;  and  that,  when  so  fixed,  it  should  not 
be  removed  without  the  consent  of  four  fifths  of  the  mem- 
bers of  both  Houses  of  the  General  Assembly. 

I  wish,  fellow-citizens,  that  every  one  of  you  would  read 
the  arguments  urged  in  the  convention  in  favor  of  this 
provision.  "New  Orleans,"  it  was  said,  "  was  immoral  and 
corrupt  ;  the  country  members  would  be  bribed  by  din- 
ners and  parties  and  moneyed  influences,  so  as  to  be  con- 
trolled by  city  factions,  and  would  sacrifice  the  interests 
of  their  immediate  constituents."  Miserable  pretext  for 
a  mean  injustice  !  Why,  the  very  argument  is  a  calumny 
against  the  constituents  of  the  members  who  used  it. 

O 

Those  constituents  never  dreamed  of  this  foul  wrong. 
They  never  contemplated  any  injustice  or  inequality  in 
the  political  rights  of  the  citizens  of  the  different  parts  of 
the  State.  Their  main  object,  in  common  with  the  entire 
people  of  the  State,  was  to  extend  the  right  of  suffrage 
and  to  effect  a  reform  in  the  judiciary  of  the  State.  The 
people  of  the  country  parishes  are  an  intelligent,  honest, 
high-minded,  and  republican  people  :  and  when  these  mat- 
ters shall  be  brought  properly  before  them,  they  will 
stamp  with  reprobation  the  conduct  of  those  who  have 
misrepresented  them.  1  do  not  say  that  they  will  remove 
the  seat  of  government  ;  but  I  do  say  that  they  will  re- 
move tin;  stigma  which  is  now  fixed  on  New  Orleans,  and 
that  they  will  put  her  citizens  on  a  footing  with  the  citi- 


POLITICAL  AFFAIRS   IN   LOUISIANA.  99 

zens  of  other  parts  of  the  State.  For  my  own  part,  I 
must  frankly  declare,  with  respect  to  the  best  seat  for  the 
government,  that  the  city  of  New  Orleans  presents  many 
advantages.  It  is  the  emporium  and  mart  of  the  com- 
mercial business  of  the  West.  From  its  situation,  it  re- 
ceives the  first  information  and  news  from  other  parts  of 
the  Union  and  from  abroad.  It  is  the  centre  of  the  arts 
and  sciences  and  literature  of  our  State,  and  it  abounds 
in  libraries  and  other  sources  of  information,  necessary  or 
important  to  the  business  of  enlightened  legislation. 

The  evil  effects  of  the  unjust  provisions  of  the  Constitu- 
tion in  the  apportionment  of  representation  in  the  Senate 
have  been  seen  and  felt.  In  the  spring  of  1849  a  crevasse 
occurred  beyond  the  limits  of  the  city  of  New  Orleans. 
The  river  broke  through  the  levee  at  Mr.  Sauve's  plan- 
tation, some  six  miles  above  Carrollton,  in  the  parish  of 
Jefferson.  The  rear  of  our  city  was  overflowed.  I  do 
not  remember  that  I  have  ever  looked  upon  so  melancholy 
a  spectacle.  The  city  of  New  Orleans,  after  repeated 
efforts  and  a  great  expenditure  of  money,  succeeded  in 
closing  the  crevasse.  It  was  deemed  necessary  for  the 
future  protection  of  the  city  to  make  a  protection  levee  ; 
and  the  best  informed  and  most  experienced  engineers  in 
the  State  prepared  a  plan,  and  presented  a  report  to  the 
legislature  upon  this  subject.  A  bill  was  introduced 
into  the  House  of  Representatives,  making  an  appropria- 
tion for  such  a  levee.  It  passed  the  House,  where  the 
people  of  New  Orleans  were  fairly  represented.  In  the 
Senate,  however,  where  we  had  but  one  half  of  our  just 
quota  of  members,  it  was  defeated  or  lost  by  a  single  vote. 
If  there  had  been  a  just  republican  equality  in  the  ap- 
portionment of  senators,  if  we  had  had  the  four  or  six 
additional  members  in  the  Senate  to  which  we  were 
entitled,  even  upon  the  basis  of  the  population  of  the 
State  the  bill  would  have  passed,  and  the  spectacle  would 


100  POLITICAL   AFFAIRS   IN   LOUISIANA. 

not  have  been  witnessed  of  the  State  voting  thousands 
for  internal  improvements  in  other  parts  of  the  State,  but 
refusing  a  cent  to  New  Orleans  (in  which  was  centred 
more  than  one  fourth  of  the  taxable  property  of  the 
State)  to  save  her  from  the  danger  of  inundation. 

Fellow -citizens,  if  we  examine  the  laws  that  have 
been  passed  by  our  legislature  since  the  adoption  of  the 
present  Constitution,  we  will  find  them  characterized  by 
injustice  and  a  narrow  and  illiberal  policy.  Never  has 
such  legislation  been  seen.  Many  laws  passed  on  the 
most  important  subjects  have  been  pronounced  by  the 
courts  to  l)e  unconstitutional,  while  others  have  been 
drawn  up  in  such  a  bungling  manner  as  to  be  utterly 
unintelligible,  contradictory,  and  incapable  of  being  exe- 
cuted. Without  going  beyond  the  last  session  of  the 
legislature,  our  statute  book  unfortunately  furnishes 
convincing  proof  of  this.  Two  acts  only  need  be  men- 
tioned. The  act  creating  a  board  of  liquidators  for  the 
consolidation  of  the  debts  of  the  municipalities  had 
scarcely  gone  into  operation  when  it  was  pronounced  by 
the  courts  to  be  unconstitutional.  The  act  establishing 
the  mayor's  and  recorder's  court  in  the  city  of  New 
Orleans  is  so  clumsily  and  inartificially  drawn  up  that  it 
has  never  been  put,  and  cannot  be  put,  into  useful  oper- 
ation. The  only  effect  of  these  acts  lias  been  to  give 
Messrs.  Benjamin  and  Micou,  as  attorneys  of  the  board 
of  liquidators,  some  fees  which  wore  doubtless  well  earned, 
but  with  no  benefit  to  the  public,  and  to  give  Mr.  Reese 
the  office  of  second  district  attorney,  a  sinecure  of  tfloOO 
per  annum.  These  are  fair  specimens  of  the  legislation 
of  the  last  legislature  of  Louisiana.  The  legislation  was 
bad  ;  the  theory  upon  which  the  legislation  was  based  is 
bad.  The  present  party  in  power  has  been  substantially 
in  power  since  1845,  and  might  have  done  some  good, 
but  it  has  not  done  any.  Nothing  whatever  has  been 


POLITICAL   AFFAIRS   IN   LOUISIANA.  101 

done  for  New  Orleans.  She  is  in  a  condition  of  atrophy. 
She  looked  to  the  legislature  for  bread,  and  received  a 
stone.  Perhaps,  under  the  present  Constitution,  it  would 
be  difficult  to  pass  laws  giving1  New  Orleans  the  benefits 
adequate  to  her  wants.  That  instrument  prohibits  the 
legislature  from  subscribing  to  the  stock  of  any  corpo- 
ration or  joint-stock  company.  It  prohibits  the  creation, 
renewal,  or  extension  of  any  corporate  body  with  banking 
or  discounting  privileges  ;  it  prohibits  the  creation  of  cor- 
porations by  special  laws,  except  for  municipal  purposes ; 
it  directs  the  legislature  to  provide  by  general  laws  for 
the  organization  of  all  other  corporations,  except  corpo- 
rations with  banking  or  discounting  privileges,  the  cre- 
ation of  which  it  again  specially  prohibits. 

New  Orleans  is  in  rivalry  with  the  other  great  cities 
of  the  Union,  with  Boston,  New  York,  Philadelphia,  and 
Baltimore.  She  is  in  want  of  banking  capital,  of  capi- 
tal for  commerce  and  business  purposes.  The  whole 
circulation  of  bank  issues  of  the  State  does  not  exceed 
three  and  a  half  millions.  Look  along  the  levee,  and 
consider  the  vast  quantities  of  produce  under  which  it 
annually  groans  !  You  will  see  at  a  glance  that  our  bank 
issues  are  utterly  inadequate  to  our  commercial  wants. 
In  all  the  other  great  cities  in  the  country,  in  Boston,  in 
New  York,  in  Philadelphia,  and  in  Baltimore,  they  have 
proportionally  ten  times  the  amount  of  bank  facilities 
that  we  possess.  How  is  it  possible,  under  such  circum- 
stances, for  New  Orleans  to  compete  with  them?  We 
want  capital.  We  want  the  benefit  of  a  large  capital  for 
business  of  every  kind,  and  especially  for  banking. 
Under  this  condition  of  things,  the  framers  of  the  Con- 
stitution have  thought  proper  to  prohibit  the  creation  of 
any  banking  corporation  in  this  State.  It  is  true,  the 
banking  system  has  been  a  subject  of  great  abuse,  and 
thousands  have  been  involved  in  ruin  by  that  abuse. 


102  POLITICAL   AFFAIRS   IN   LOUISIANA. 

But  are  we  never  to  learn  by  experience?  Can  other 
commercial  cities  enjoy  the  benefits  of  banking  corpora- 
tions with  safety  and  advantage  to  themselves,  and  is 
New  Orleans  alone  incapable  of  managing  such  institu- 
tions ?  What  commercial  country  in  the  world  prospers 
without  them  ?  The  Whigs,  in  a  paper  called  their 
platform,  have  declared  themselves  the  advocates  of  "  a 
well-regulated  system  of  free  banks,"  and  Mr.  Miles 
Taylor  is  reported  to  have  said  that  we  have  free  banking 
now  among  us.  This  assertion  of  Mr.  Taylor  may  be 
true  in  one  sense,  but  it  is  unfounded  in  another  sense, 
and  in  the  sense  in  which  free  banking  is  understood  by 
the  people.  It  is  true  that  every  citizen  who  chooses, 
and  who  has  the  means  of  banking,  is  free  to  bank  upon 
those  means.  There  are  no  laws  in  this  State  to  restrain 
him  from  doing  so.  Mr.  Robb,  we  all  know,  is  a  banker, 
and  Mr.  Jacob  Barker  is  also  a  banker,  and  issues  his 
notes  for  circulation.  In  this  sense  Mr.  Taylor  may  be 
right  in  saying  that  we  have  free  banking  now.  But  this 
is  using  the  terms  in  a  sense  peculiar  to  himself,  and 
different  from  the  general  understanding  of  the  com- 
munity. At  all  events,  this  is  not  the  system  of  free 
banking  which  the  Whigs  refer  to  in  their  platform. 

In  the  State  of  New  York  restraints  upon  private 
banking  were  adopted  by  the  legislature  at  an  early  day. 
In  1781  Congress  incorporated  the  Bank  of  North  Amer- 
ica, and  recommended  to  the  States  to  prohibit  any  other 
bank  or  bankers  within  those  States  during  the  war. 
The  legislature  of  New  York  in  1782  followed  the 
recommendation.  After  the  treaty  of  1783  there  was  no 
law  restraining  banking  in  New  York  until  1804,  when 
an  act,  generally  called  the  Restraining  Act,  was  passed  to 
restrain  unincorporated  banking  companies.  In  1838  a 
law  was  passed  authorizing  free  banking  associations  in 
New  York,  and  the  system  of  free  banking  was  estab- 
lished. 


POLITICAL   AFFAIRS   IN   LOUISIANA.  103 

Mr.  Dunbar,  in  a  letter  to  the  editors  of  the  "  Delta," 
says  that  there  is  no  need  of  any  change  in  our  Constitu- 
tion to  establish  free  banking  here,  because  in  New  York 
and  in  England  it  has  been  decided  that  joint-stock 
companies  or  associations  may  be  created,  in  which  the 
shares  may  be  made  transferable,  the  responsibility  of  the 
shareholders  may  be  limited,  and  the  company  or  associ- 
ation may  be  declared  not  dissolved  by  the  death  of  a 
member,  and  suits  may  be  prosecuted  by  and  against  the 
president  of  the  association  or  company,  and  all  this 
without  making  such  associations  corporations.  And  in 
support  of  this  view  Mr.  Dunbar  refers  to  a  case  in  23 
Wendell's  Rep.  100. 1  The  decision  to  which  Mr.  Dunbar 
refers  supports  the  doctrine  for  which  he  contends.  The 
distinction  between  such  associations  and  corporations  is 
nice  and  shadowy,  and  has,  I  admit,  been  recognized  by 
the  courts.  But  the  transferability  of  shares,  the  limited 
responsibility  of  shareholders,  the  non-dissolution  or  con- 
tinued existence  notwithstanding  the  death  of  a  member, 
and  the  prosecution  of  suits  in  a  name  other  than  the 
names  of  the  members  of  an  association  are  usual  elements 
of  corporations  as  described  in  the  books.  Attorney- 
General  Bronson  gave  his  opinion  on  the  6th  January, 
1835,  to  the  Senate  of  Xew  York,  that  such  associations 
would  enjoy  corporate  privileges,  and  in  1837  Attorney- 
General  Beardsley  expressed  the  same  opinion.  And  in 
the  Constitution  of  the  State  of  New  York  of  1846  it  was 
expressly  declared  that  "  the  term  corporations  shall  be 
construed  to  include  all  associations  and  joint-stock  com- 
panies having  any  of  the  powers  and  privileges  of  corpo- 
rations not  possessed  by  individuals  or  partnership."  Two 
of  the  judges  of  our  Supreme  Court,  Chief  Justice  Eustis 
and  Judge  Preston,  were  members  of  our  convention. 
They  had  signalized  themselves  as  opponents  of  the 
1  Lincoln  vs.  Crandell  et  al. 


104  POLITICAL  AFFAIRS   IN   LOUISIANA. 

banking  system,  —  of  any  credit  system.  They  both 
voted  for  the  clauses  in  the  Constitution  prohibiting 
banks  to  which  I  have  referred.  Judge  Eustis  has 
recently  declared  in  substance  that,  in  reflecting  on  his 
votes  in  the  convention,  he  was  fully  satisfied  with  those 
he  had  given  upon  the  subject  of  banks.  With  this  bias, 
then,  upon  the  minds  of  Judge  Preston  and  Chief  Justice 
Eustis,  with  the  dissenting  opinions  of  two  attorney- 
generals  of  New  York  as  to  the  nature  of  free  bank- 
ing associations,  and  with  the  provision  in  the  Con- 
stitution of  New  York,  adopted  in  184G,  declaring  such 
associations  corporations,  can  it  reasonably  be  expected 
that  capitalists  and  the  holders  of  securities  will  be 
induced  to  vest  their  stocks  and  money  in  institutions 
created  under  the  present  Constitution  of  the  State? 
With  such  doubts,  whether  well  founded  or  ill  founded,  as 
to  the  constitutionality  of  such  institutions,  or  rather  as  to 
the  probable  decision  of  our  Supreme  Court,  would  capital 
come  here  and  engage  in  the  business  of  free  banking  ? 

What  is  this  free  banking  ?  It  is  not,  as  I  have  already 
said,  what  Mr.  Taylor  defines  it  to  be,  a  mere  right  of 
every  man  to  bank  on  his  own  money  or  capital.  That  is 
not  the  system  of  banking  which  the  people  of  Louisiana 
want.  They  want  the  system  as  advocated  by  the  Whig 
platform.  They  want  a  well-regulated  system  of  free 
banks,  so  guarded  that  while  it  will  diffuse  the  benefits  of 
capital,  it  shall  at  the  same  time  afford  a  safe  circulation 
convertible  into  specie  at  all  times  and  under  all  circum- 
stances. They  want  a  system  which  may  produce  a  bene- 
ficial influence  upon  our  embarrassed  affairs  and  depressed 
community.  They  wish  a  system  such  as  exists  in  New 
York  or  Massachusetts.  By  such  a  system,  individuals 
and  associations  formed  for  the  purpose  of  banking  may, 
upon  a  transfer  of  public  stock  of  the  United  States  or 
such  other  stock  or  securities  as  the  State  may  designate, 


POLITICAL   AFFAIRS   IN   LOUISIANA.  105 

obtain  from  the  auditor  of  public  accounts,  the  treasurer 
of  the  State,  or  any  other  officer  who  may  be  appointed 
for  the  purpose,  such  quantity  of  circulating  notes,  to  be 
countersigned  and  registered  by  the  officer,  as  the  State 
may  deem  it  expedient  to  issue  upon  the  stock  or  securi- 
ties pledged.  These  notes  after  having  been  executed 
and  signed  as  required  by  law  may  be  circulated  as  money. 
If  not  paid  on  demand,  they  must  be  redeemed  by  the 
state  officer  with  the  stock  or  securities  thus  transferred  ; 
for  this  purpose,  the  officer  is  authorized,  after  ten  days' 
notice,  to  sell  the  same  at  public  auction.  The  system 
then  is  to  give  to  individuals  the  right  to  associate,  and  to 
enable  them  to  obtain  upon  a  pledge  of  good  securities 
countersigned  bills  proportioned  to  the  amount  of  stocks 
or  securities  pledged.  It  will  be  the  duty  of  the  State  to 
take  care  that  the  stock  or  securities  offered  shall  be  good 
and  sufficient.  By  a  provision  of  law  the  amount  of  bills 
issued  may  be  limited  so  as  to  pi-event  those  who  receive 
the  bills  from  all  danger  of  loss.  For  instance,  individ- 
uals or  associations  holding  United  States  stock  to  the 
amount  of  ten  thousand  dollars  may,  upon  the  pledge  of 
that  stock,  be  furnished  with  notes  for  circulation  to  the 
amount  of  five  thousand  dollars.  If  the  notes  should  not 
be  redeemed  or  paid  in  specie  when  called  for,  the  stock 
pledged  will  be  sold  and  the  bill-holders  paid  out  of  the 
proceeds.  Where  too  large  an  amount  of  notes  is  not 
issued  on  stock  there  cannot  ultimately  be  any  loss  to  the 
note-holders. 

What  I  have  said  is  only  by  way  of  illustration.  It 
will  be  for  the  State  to  determine  the  proportion  between 
the  stocks  or  other  securities  and  the  notes.  What  has 
been  said  of  ten  thousand  dollars  is  equally  applicable  to 
one  hundred  thousand  dollars,  or  five  hundred  thousand 
dollars,  or  any  other  amount.  Make  the  notes  payable  at 
the  proper  point,  at  the  point  most  convenient  to  the  note- 


106  POLITICAL   AFFAIRS  IN   LOUISIANA. 

holder,  and  with  prudence  and  care,  and  the  adoption  of 
such  guards  as  experience  has  pointed  out  in  New  York 
and  Massachusetts  to  be  necessary  and  effectual,  the  sys- 
tem cannot  fail  to  be  highly  beneficial  to  our  struggling 
commerce,  to  the  workingman  in  New  Orleans,  and  to 
the  people  of  the  State  at  large. 

And  what  are  the  inducements  which  this  system  holds 
out  to  capitalists  to  use  their  stocks  and  securities  as  pro- 
posed ?  Why,  in  the  first  place,  they  would  have  the  in- 
terest upon  their  stock,  which  would  remain  safe  in  the 
hands  of  the  state  officer  ;  and,  in  the  second  place,  they 
would  have  the  profits  of  their  banking  business.  This, 
then,  is  a  safe  and  a  profitable  system  for  the  capitalist, 
and  it  will  be  a  safe  and  a  proper  system  for  the  commu- 
nity at  large.  The  circulating  medium  will  be  perfectly 
safe,  and  the  community  will  be  accommodated  with  bank 
facilities.  This  is  the  system  of  free  banking  proposed 
by  the  Whigs  :  the  free  banking  by  which  capital  is  to  be 
invited  and  induced  to  come  here  :  the  free  banking  by 
which  every  class  in  the  community  is  to  be  alike  bene- 
fited, money  made  plenty,  confidence  established,  com- 
merce and  industry  stimulated,  and  the  value  of  labor 
raised. 

It  is  said  that  the  Democrats  are  in  favor  of  this  system. 
I  am  glad  of  it.  I  believe  the  great  body  of  the  people 
—  Democrats  as  well  as  Whigs  —  are  in  favor  of  the  sys- 
tem. But  I  advise  you,  fellow-citizens,  to  distrust  the 
professions  of  those  who  have  been  so  long  in  power,  but 
who  have  never  taken  a  step  towards  the  introduction  of 
the  system.  Turn  from  them,  and  give  your  support  to 
those  who  stand  publicly  pledged  and  are  ready  to  create 
and  give  legal  efficacy  to  the  system  at  the  earliest  pos- 
sible moment  in  the  best  and  safest  form. 

However  beneficial,  fellow-citizens,  a  well-regulated  sys- 
tem of  free  banking  might  prove  to  New  Orleans,  it  would 


POLITICAL   AFFAIRS   IN   LOUISIANA.  107 

yet  be  inadequate  to  regain  the  commerce  which  she  has 
lost,  to  open  new  sources  of  wealth,  and  to  restore  her  to 
prosperity,  unless  a  wise  and  liberal  system  of  railroads  and 
other  impi'ovements  should  at  the  same  time  be  adopted 
for  the  encouragement  of  the  labor  and  the  development 
of  the  resources  of  the  State.  New  Orleans  may  be  con- 
sidered at  present,  for  all  practical  commercial  purposes, 
as  cut  off  from  communication  with  the  rest  of  this  State, 
and  (if  we  exclude  Mobile)  with  other  parts  of  the  Union 
except  by  means  of  the  Mississippi.  Content  with  the 
natural  advantages  which  the  river  affords  and  with  hav- 
ing so  long  received  tribute  from  the  great  valley  of  the 
Mississippi,  she  has  remained  supine  and  inactive,  while 
other  commercial  cities  of  the  Union,  by  their  superior 
enterprise  in  making  railroads  and  other  internal  im- 
provements, have  opened  artificial  communications  with 
almost  every  portion  of  our  country,  and  by  the  facilities 
which  they  have  afforded  have  diverted  from  New  Orleans 
a  considerable  portion  of  the  produce  which  heretofore 
came  to  her  market  and  constituted  a  great  source  of  her 
prosperity.  New  York  and  Boston  have  been  taking 
away  the  commerce  of  the  rich  and  growing  States  of  the 
Northwest.  Philadelphia,  Baltimore,  Charleston,  and  Sa- 
vannah are  rapidly  drawing  from  us  a  portion  of  the  trade 
of  the  valley,  and  Mobile  is  endeavoring  by  means  of  the 
Mobile  and  Ohio  road  to  turn  from  its  accustomed  channels 
a  large  portion  of  the  trade  of  Mississippi  and  Tennessee. 
During  the  present  season  of  the  year,  when  the  rivers  are 
low,  a  person  can  come  from  Louisville  to  New  Orleans  by 
the  way  of  New  York  sooner  than  by  the  way  of  the  Ohio 
and  the  Mississippi.  All  this  is  owing  chiefly  to  the  ad- 
vantages arising  from  a  system  of  railroads.  Louisiana 
has  but  eighty-one  miles  of  railroad  within  her  limits. 

We   must   arouse  ourselves,   fellow-citizens,    and  enter 
at  once  upon  the  work  of  improvement.     We,  too,  must 


108  POLITICAL   AFFAIRS   IN   LOUISIANA. 

build  up  railroads  if  we  wish  to  prosper.  New  Orleans 
must  stretch  her  iron  arms  into  the  interior  of  the  State 
and  extend  them  even  beyond  the  limits  of  Louisiana. 
She  must  carry  her  improvements  to  the  doors  of  her 
neighboring  States  and  connect  her  roads  with  their  roads. 
The  efforts  made  by  her  rivals  to  draw  her  trade  from  her 
will  then  prove  unavailing.  Large  quantities  of  land  of 
great  fertility  within  our  own  limits  will  be  brought  into 
cultivation.  Along  the  whole  line  of  her  railroads  land 
will  increase  in  value,  while  the  property,  and  especially 
the  real  estate  of  New  Orleans,  will  also  be  enhanced. 
The  benefits  arising  from  railroads  may  be  seen  in  the 
progress  of  other  cities  and  other  States  in  the  Union, 
and  have  been  clearly  shown  by  the  writers  on  the  subject. 
The  advantages  attending  improved  means  of  transport 
are  evident.  The  products  of  agricultural  labor  have  in 
general  great  bulk  with  proportionally  small  value.  It  is 
important,  therefore,  to  the  agriculturist  that  such  im- 
provements should  be  made  as  will  enable  him  to  carry 
his  goods  at  the  cheapest  rate  and  in  the  shortest  time  to 
market.  The  expenses  incidental  to  transport  frequently 
amount  to  a  large  portion  of  the  price  of  the  article.  For 
instance,  if  a  person  should  buy  ten  thousand  dollars' 
worth  of  cotton  on  the  banks  of  the  Cumberland  Uiver 
for  the  purpose  of  shipping  it  from  New  Orleans  to  Liver- 
pool, the  price  that  would  be  paid  bv  the  consumer  would 
be  not  only  the  price  paid  to  the  farmer  on  the  Cumber- 
land, but  also  the  price  paid  for  its  transport  from  that 
place  to  the  consumer.  This  would  consist  of  the  freight 
paid  for  conveying  the  cotton,  the  interest  on  the  price 
paid  to  the  producer  from  the  time  of  purchase  till  it 
readies  the  consumer,  and  the  insurance.  There  are  many 
articles,  indeed,  which  are  of  little  or  no  value  except  in 
consequence  of  transportation.  For  instance,  ice  in  the 
middle  of  the  winter  in  Long  Pond,  near  Boston,  has  no 


POLITICAL  AFFAIRS   IN   LOUISIANA.  109 

value,  but  when  transmitted  to  New  Orleans  or  to  Ha- 
vana it  becomes  of  considerable  value.  Guano  is  of  no 
value  in  the  place  where  it  is  found,  but  when  transported 
to  the  field  of  the  agriculturist  it  becomes  eminently  use- 
ful and  valuable. 

Dr.  Lardner  states  that  when  the  Houses  of  Parlia- 
ment were  occupied  with  the  Railway  Acts,  a  great  mass 
of  evidence  was  produced  illustrating  the  advantages 
which  both  producer  and  consumer  would  obtain  by  the 
increased  cheapness  and  expedition  of  transport  which 
railways  would  supply.  Extensive  graziers  declared  that 
animals  of  every  species,  driven  to  market  on  the  common 
roads,  suffered  so  much  that  when  they  arrived  at  market 
their  flesh  was  not  in  a  wholesome  state,  and  they  were 
frequently  obliged  to  be  sold  for  what  they  would  fetch. 
The  butchers  declared  that  the  value  of  cattle  receiving 
such  injury  was  considerably  less,  in  consequence  of  the 
inferior  quality  of  the  meat.  It  was  shown,  further,  that 
steam  vessels  did  not  altogether  remove  the  objection ; 
and  all  parties  agreed  that  a  speedy  transportation,  even 
though  it  cost  double  the  price,  would  be  a  benefit.  The 
evidence  was  still  stronger  respecting  the  produce  of  the 
dairy  and  the  garden.  Milk,  cream,  fresh  butter,  vege- 
tables of  every  description,  and  every  kind  of  fruit  were 
usually  supplied  from  a  narrow  strip  of  soil  about  the  out- 
skirts of  great  cities.  The  milk  was  of  a  very  inferior 
quality.  The  animals  that  yielded  it  were  fed  on  grain 
and  other  similar  articles,  in  a  great  degree,  and  not  upon 
wholesome  and  natural  pasturage.  But  since  the  intro- 
duction of  railroads,  numerous  wagons  are  brought  from 
pasturages  at  great  distances  from  the  cities  where  it  is 
nsed.  It  is  evident  that  these  advantages  from  railroads 
accrue  equally  to  the  inhabitants  of  the  city  and  the  in- 
habitants of  the  town.  The  milk,  the  cream,  the  vege- 
tables, the  fresh  butter,  the  fruit,  which  are  of  little  or  no 


110  POLITICAL   AFFAIRS   IN   LOUISIANA. 

value  in  St.  Lanclry,  St.  Mary,  and  other  parishes,  would, 
if  the  Algiers  and  Opelousas  Railroad  were  established, 
become  articles  of  considerable  value ;  because,  by  being 
transported  immediately  to  New  Orleans,  they  would  fur- 
nish a  supply  to  the  inhabitants  of  that  city.  The  inhab- 
itants of  the  city  would  not  only  have  the  pleasure  of 
enjoying  these  thing's,  which  are  now  wasted,  but,  inas- 
much as  they  would  obtain  them  at  a  less  price  than  they 
pay  for  similar  articles  at  present,  they  would  have  some 
surplus  money  which  they  might  expend  for  other  pur- 
poses. 

We  may  form  some  idea  of  the  increase  in  the  value  of 
property  along  railroads  and  at  their  termini  by  look- 
ing, as  I  have  suggested,  to  the  progress  of  other  cities 
and  States  in  the  Union.  Massachusetts  commenced  mak- 
ing railroads  in  1835.  In  1839  Boston  had  1G7  miles 
of  railroad,  radiating  thence  in  various  directions.  In 
1850  she  was  connected  with  3000  miles,  one  third  of 
which  is  within  Massachusetts,  1350  within  the  other  New 
England  States,  and  G50  in  the  State  of  New  York. 
And  we  all  remember  the  celebration  lately  of  the  open- 
in!''  of  the  railroad  between  Boston  and  Canada.  These 

O 

great  works,  it  is  said,  have  enlarged  the  area  of  country 
which  contributes  to  her  commerce  probably  tenfold,  and 
the  effect  is  unprecedented.  In  1834  the  value  of  all  the 
property  of  Boston  was  #21,590,300:  in  1849  it  was 
$102,827,500;  and  on  the  first  of  January,  1851,  it  was 
•$238,000,000.  The  increase  of  the  value  of  property  was 
not  confined  to  Boston.  The  State  felt  the  benefit  of  the 
railroads.  In  1840  the  total  value  of  the  property  in  the 
State  was  #299,878,321),  in  1850  it  was  1590,531,881  ; 
making  an  increase  in  ten  years  of  §290,653,552. 

Tin;  population  and  the  valuation  of  property  in  the 
counties  of  New  York  traversed  by  the  Erie  Canal 
were  :  — 


POLITICAL  AFFAIRS  IN   LOUISIANA.            Ill 

Population.  Real  and  Personal  Estate. 

In  1830 460,562  $43,484,580 

In  1850 564,685  84,000,350 


Increase  in  ten  years  104,123  840,515,770 

Colonel  Gadsden,  of  South  Carolina,  states  that  land 
all  along-  the  road  to  Hamburg  and  Columbia,  for  five 
miles  each  side  of  the  South  Carolina  Railroad,  has 
appreciated  in  value  since  its  construction,  in  some  cases 
5000  per  cent,  and  where  there  was  not  $20,000  of 
trade  there  is  now  upwards  of  $250,000.  In  Georgia, 
lands  that  in  1846  could  readily  be  bought  for  25  and 
50  cents  per  acre  can  now  command  $10,  $12,  and  $15 
per  acre.  I  might  refer  to  the  increase  in  the  value  of 
real  estate  in  the  counties  bordering  on  the  Vicksburg 
and  Jackson  Railroad,  and  in  the  counties  bordering  on 
the  Nashville  and  Chattanooga  road,  to  the  increase  in 
Charleston,  in  Baltimore,  and  in  Savannah  ;  but  I  shall 
content  myself  with  saying  generally  that  while  popula- 
tion, production,  and  wealth  have  been  produced  by  rail- 
roads, real  estate  has  felt  most  directly  and  powerfully  the 
influence  of  those  improvements. 

The  railroad  system  seems,  indeed,  to  have  a  creative 
power.  In  estimating  the  advantages  of  a  road,  we  are 
correctly  told,  therefore,  not  to  confine  ourselves  to  a  con- 
sideration whether  the  production  at  the  time  of  construc- 
tion will  be  sufficient  to  reimburse  the  cost  of  a  road. 
"  We  must  estimate  the  increased  production  caused  by 
the  improvement  itself :  the  opening  of  new  channels 
of  trade,  the  development  of  the  resources  of  the  country, 
the  expansion  of  commerce,  the  growth  of  population,  and 
the  increase  of  traveling/'  Time  is  money.  We  are  all 
of  us.  fellow-citizens,  laboring  men,  and  cannot  afford  to 
waste  our  time.  Hence,  increased  speed  in  the  transport 
of  persons  is  a  matter  of  importance.  A  person  in 
Louisville,  who  has  commercial  business  to  transact,  can 


112  POLITICAL   AFFAIRS   IN   LOUISIANA. 

now  go  to  New  York,  make  his  purchases,  and  return 
home  in  less  time  than  it  would  take  him  to  come  from 
Louisville  to  New  Orleans.  If  the  speed  at  which  per- 
sons can  be  transported  from  place  to  place  is  doubled  by 
means  of  railroads,  the  distance  is  diminished  one  half. 
The  man,  therefore,  who  can  be  carried  to  his  place  of 
business  five  hundred  miles  in  thirty  hours  is  practically 
nearer  that  place  than  another  man  would  be  who  lived 
two  hundred  and  fifty  miles  from  that  place,  and  who  had 
no  other  mode  of  conveyance  than  by  a  horse.  If  we 
would  induce  travelers  to  come  among  us  ;  if  we  would 
attract  to  New  Orleans  men  engaged  in  trade  and  com- 
merce and  the  general  business  of  life ;  if  we  would 
retain  the  trade  which  we  are  now  in  danger  of  losing, 
through  the  exertions  of  rival  cities  ;  if  we  would  keep 
the  tide  of  commerce  within  its  accustomed  channels ;  if 
we  would  bring  back  to  us  any  portion  of  that  produce 
now  drawn  aside  from  our  market  by  the  railroads  and 
improvements  of  other  cities  ;  if  we  would  take  advantage 
of  our  proximity  to  Texas  and  to  the  Western  States,  and 
of  our  position  as  a  great  commercial  depot  and  an  empo- 
rium of  trade,  where  those  engaged  in  mercantile  business 
in  the  interior  can  most  conveniently  purchase  what  is 
required  for  their  customers  :  if  we  would  invite  to  us  the 
trade  of  the  East  Indies  through  California  ;  if  we  would 
give  new  value  to  the  real  estate  of  New  Orleans  and  of 
Louisiana  ;  if  we  would  expedite  the  transmission  of  news 
and  general  intelligence,  and  facilitate  the  diffusion  of 
knowledge  by  cheap  and  speedy  conveyance! :  if,  wisely 
looking  forward  to  the  happening  of  a  war.  we  would  pro- 
vide for  the  quick  transportation  of  a  sufficient  body  of 
troops  from  various  parts  with  a  view  to  the  defense  of 
this  State  and  of  the  country  at  large  ;  if  we  would  give 
encouragement  to  labor,  raise  the  wages  of  industry,  re- 
store our  credit,  and  advance  the  general  prosperity  of  the 


POLITICAL   AFFAIRS   IN   LOUISIANA.  113 

State,  we  must,  fellow-citizens,  at  once  adopt  the  wise  and 
liberal  system  of  railroads  recommended  by  the  Whig  can- 
didates before  you.  To  effect  this  scheme  of  improve- 
ment, it  is  your  duty  to  bestow  your  confidence  upon  men 
who  have  never  deceived  you,  and  who  are  capable  of 
performing  the  work  they  undertake. 

Under  the  present  legislation  of  the  State,  no  scheme  of 
internal  improvement  can  be  carried  on.  The  Constitu- 
tion, we  have  seen,  declares  that  the  legislature  shall  pro- 
vide by  general  laws  for  the  organization  of  all  corpora- 
tions except  banking  corporations.  In  1848  a  law  was 
passed  to  provide  for  the  organization  of  corporations  in 
this  State,  and  it  has  been  well  said  that  looking  to  its 
minute  provisions  relative  to  formalities,  and  its  restric- 
tions 011  the  companies  to  be  formed  under  it,  the  act 
should  have  been  entitled  an  "  Act  to  prohibit  the  organiza- 
tion of  corporations."  The  time  and  place  of  opening- 
books  of  subscription,  and  the  names  of  the  commissioner 
to  superintend  them,  must,  according  to  the  act,  be  speci- 
fied in  the  agreement  of  the  parties  who  propose  to  form 
a  company.  The  act  of  incorporation  is  required  to  be 
published  for  thirty  days,  together  with  the  names  of  the 
corporators,  etc.,  before  the  corporation  shall  commence 
business.  The  act  of  incorporation  must  be  passed  before 
a  notary  public,  and  a  certified  copy  of  it  must  be  pre- 
sented to  a  district  judge  to  be  by  him  examined.  A 
copy  also  must  be  served  on  the  district  attorney,  who  is 
allowed  ten  clays  to  file  his  written  opposition  to  it. 
Thirty  days'  previous  notice  of  the  application  to  the 
judge  must  be  published,  and  any  citizen  of  the  State 
may  make  opposition.  If  opposition  be  made  by  any  one 
individual,  Mr.  Benjamin  thinks  that  it  is  impossible  to 
say  that  a  corporation  can  act  in  less  than  eighteen 
months  or  two  years.  The  expropriation  of  property  by 
railroad  companies  is  prohibited  without  the  express 


114  POLITICAL   AFFAIRS   IN   LOUISIANA. 

authority  of  the  legislature  previously  obtained,  and  the 
company  is  prohibited  from  entering-  into  the  limits  of  a 
city  or  any  incorporated  town  without  the  sanction  of  the 
authorities  who  are  given  the  right  of  determining  the 
rates  of  tolls  and  fees.  A  single  proprietor,  therefore, 
on  the  line,  or  any  municipal  corporation,  may  cause  the 
work  to  be  stopped.  Twenty  per  cent  must  be  paid  by 
each  subscriber  at  the  time  of  subscription,  although  one 
sixth  of  that  amount  would  be  sufficient  for  all  prelimi- 
nary purposes.  And  the  legislature  retains  to  itself  the 
power  at  all  times  to  alter  and  amend  the  law.  It  is  evi- 
dent that  no  adequate  subscription  for  any  useful  purpose 
can  be  obtained  under  such  conditions. 

The  projectors  of  the  New  Orleans,  Jackson,  and 
Northern  Railroad  have  not  been  deterred  by  these  pro- 
visions from  making  some  preliminary  organization,  and 
raising  by  voluntary  subscription  an  amount  sufficient 
for  the  necessary  preliminary  expenses  of  survey,  location, 
etc.  Under  this  arrangement  the  stock  taken  amounts  to 
$400,000.  This  is  evidence,  under  the  law  and  under 
the  circumstances  of  the  case,  of  the  zeal,  enterprise,  and 
good  faith  with  which  the  road  has  been  projected.  It  is 
insisted,  however,  that  this  road  is  a  work  eminently 
public  in  its  character,  and  calculated  to  promote  the 
general  prosperity  of  the  State,  and  especially  to  enhance 
the  value  of  the  entire  property  situated  on  the  line  of 
the  route  and  at  its  termini,  and  that  justice  therefore 
requires  that  means  for  its  construction  be  provided  at  the 
expense  of  all  those  who  are  to  share  its  benefits.  This 
seems  equitable.  Experience,  as  I  have  heretofore 
observed,  has  shown  that  real  estate  is  the  iirst  to  feel, 
and  to  feel  most  directly,  the  beneficial  influence  of  inter- 
nal improvements.  It  is  proposed,  accordingly,  to  obtain 
the  passage  of  a  law  vesting  in  the  parishes  of  the  State, 
with  the  concurrence  of  a  majority  of  their  legal  voters, 


POLITICAL   AFFAIRS   IN   LOUISIANA.  115 

the  right  to  levy  a  special  tax  upon  real  estate  for  the 
promotion  of  railroads.  Individual  subscriptions  have 
generally  proved  insufficient  for  such  works,  and  it  is  not 
just  to  suffer  those  who  will  participate  in  their  advan- 
tages to  throw  the  whole  burden  upon  a  few.  There  are 
always  to  be  found  in  every  community  some  rich  men 
who  acquire  real  estate,  and  who,  knowing  that  such 
estate  will  be  enhanced  in  value  by  whatever  adds  to  the 
value  of  real  estate  generally,  and  especially  by  works  of 
internal  improvement,  will  refuse  to  aid  in  such  works 
because  not  at  first  profitable  in  themselves,  however 
advantageous  in  their  general  results  to  the  community. 
They  say,  "  Why  should  we  subscribe  ?  If  others  sub- 
scribe, and  the  community  benefits  thereby,  we  will  share 
in  the  common  benefit  without  paying  or  risking  any- 
thing." Such  a  man  was  the  late  John  McDonough, 
and  I  know  half  a  dozen  such  at  this  time  in  New 
Orleans.  The  object  of  the  proposed  law  is  to  compel 
such  persons  to  contribute  a  fair  quota  for  the  benefit 
they  will  receive  from  the  establishment  of  the  railroad. 
And  the  question  of  determining  whether  the  tax  shall  be 
imposed  or  not  is  to  be  submitted  to  the  people  them- 
selves, in  the  city  and  in  the  parishes  through  which  the 
road  is  to  run.  They  are  all  interested  in  the  general 
rise  or  depreciation  of  real  estate,  and  if  not  proprietors, 
at  least  expect  or  desire  to  be  so.1  The  tax  proposed  will 
be  very  light.  Upon  real  estate  one  half  per  cent  would 
give  five  dollars  on  a  thousand.  At  the  end  of  four  years 
it  would  amount  to  twenty  dollars.  But  the  tax  is  not 
without  some  equivalent  in  addition  to  the  benefit  con- 
ferred upon  real  estate  by  the  road  ;  for  the  amount  of 
the  tax  is  to  be  represented  by  stock,  to  be  parceled  out 
to  the  property-holders,  who  may  dispose  of  the  same  if 
they  think  proper,  and  thus  diminish  the  amount  of  their 
1  Report  of  Mr.  Robb. 


116  POLITICAL   AFFAIRS   IN   LOUISIANA. 

assessment.  I  trust,  fellow-citizens,  that  you  will  give 
your  support  to  a  law  so  equitable  and  just,  so  well  cal- 
culated to  advance  the  interests  of  every  portion  of  our 
city  and  of  our  State.  I  know  no  other  way  in  which  any 
great  work  of  improvement  can  be  carried  on  with  a  prob- 
ability of  success  under  the  present  Constitution  of  the 
State. 

With  a  system  of  free  banking  and  with  a  system  of 
railroads  such  as  are  proposed  in  the  Whig  platform,  the 
people  of  New  Orleans  will  enjoy  the  benefits  of  capital 
and  of  a  sound  circulation,  convertible  into  specie  at  all 
times  and  under  all  circumstances,  while  a  new  spirit  of 
enterprise  will  be  infused  into  commerce,  and  will  de- 
velop the  resources  of  the  State,  and  give  new  encourage- 
ment to  labor. 

If  we  turn  to  the  judiciary  department  of  the  govern- 
ment, we  will  find  its  structure  equally  defective.  The 
Constitution  provides  that  "  the  Supreme  Court  shall  be 
composed  of  four  judges,  viz.,  of  one  chief  justice  and  of 
three  associate  justices,"  and  that  "  in  all  cases  in  which 
the  judges  shall  be  equally  divided  in  opinion  the  judg- 
ment appealed  from  shall  stand  affirmed."  The  act  of 
1840  divides  the  State  into  seventeen  judicial  districts. 
For  each  district  one  judge  has  been  appointed,  except  in 
the  first  judicial  district,  composed  of  the  parish  and  city 
of  New  Orleans,  in  which  there  are  five  district  judges. 
Now  in  the  district  courts  of  New  Orleans  we  have  five 
judges  of  very  different  characters  and  very  different 
minds.  A  question  may  be  brought  before  Judge 
Buchanan  in  the  fifth  district  court,  which  he  may  de- 
cide in  favor  of  the  plaintiff.  A  precisely  similar  case 
may  be  brought  before  Judge  Kennedy  in  the  third 
district  court,  and  lie  may  decide  it  in  favor  of  the 
defendant,  and  in  direct  opposition  to  the  opinion  of 
Judge  Buchanan.  Suppose  an  appeal  should  be  taken 


POLITICAL  AFFAIRS   IN   LOUISIANA.  117 

from  each  of  these  decisions,  and  that  both  cases  should 
be  argued  before  the  Supreme  Court  at  the  same  term, 
and,  it  may  be,  on  the  same  day.  If  the  judges  of  the 
Supreme  Court  should  be  equally  divided  in  opinion,  the 
judgment  of  Judge  Buchanan  would  be  affirmed  in  one 
case,  and  the  judgment  of  Judge  Kennedy  would  be 
affirmed  in  the  other.  The  consequence  is  that,  under 
the  operation  of  the  Constitution,  we  may  have,  in  cases 
of  appeal,  directly  contradictory  decisions  upon  the  same 
point  by  the  Supreme  Court. 

The  same  thing  may  occur  in  cases  of  appeal  from  any 
other  district  courts  of  the  State.  And  it  has  been  held 
that  one  decision  of  the  Supreme  Court  on  a  point  in  one 
case  is  not  conclusive  or  binding  upon  the  same  court  in 
another  case.  The  truth  is,  the  court  may  decide  cases, 
but  it  cannot  settle  principles,  and  the  people  of  Louisi- 
ana are  in  that  condition  which  has  been  described  by 
enlightened  jurists  as  wretched  slavery,  where  the  law 
is  vague  and  uncertain.  There  is  scarcely  a  difficult  and 
important  question  presented  to  the  court  upon  which 
there  is  not  some  division  of  opinion  among  the  judges. 
It  is  not  uncommon  to  see  some  of  the  junior  members  of 
the  bar  going  to  the  Supreme  Court  on  Monday  morning, 
smiling  at  the  anticipation  of  hearing  that  which  fills  the 
elder  and  graver  members  of  the  bar  with  deep  regret 
and  mortification,  the  dissenting  opinion  of  Judge  Pres- 
ton, or  of  Judge  Rost,  or  of  Judge  Slidell,  or  of  Chief 
Justice  Eustis.  It  is,  indeed,  lamentable  to  reflect  that 
the  frequent  contrariety  of  opinions  has  greatly  impaired 
the  moral  power  of  the  court  over  the  sentiments  of  the 
people,  and  shaken  the  public  confidence  in  the  wisdom 
of  that  tribunal. 

The  Supreme  Court  themselves  have,  under  an  extraor- 
dinary interpretation,  decided  that  the  Constitution  has  not 
given  them  adequate  power  to  protect  the  rights  of  the 


118  POLITICAL   AFFAIRS  IN   LOUISIANA. 

citizen  in  criminal  cases.  The  Constitution,  therefore,  I 
submit  to  your  consideration,  fellow-citizens,  has  in  this 
respect  also  failed  to  answer  one  of  the  main  objects  for 
which  it  was  established. 

Under  the  Constitution  of  1812,  and  the  legislation  of 
this  State  prior  to  1843,  no  appeal  was  allowed  in  any 
criminal  case.  The  judge  of  the  first  instance  heard,  and 
finally  determined  the  matter.  In  this  state  of  tilings, 
there  was  no  fixed  principle  to  govern  the  judges  alike, 
but  each  judge  of  necessity  laid  down  the  rule  in  the 
court  over  which  he  presided.  Hence,  it  not  unfrequently 
happened  that  what  was  adjudged  law  in  one  district 
was  declared  not  to  be  law  in  another.  In  1843  a  remedy 
was  applied  to  this  evil.  It  was  urged  that  a  man  ac- 
quitted in  one  district  of  an  offense  could  be  condemned 
under  the  same  circumstance  for  a  similar  offense  in  an- 
other district  as  a  felon,  and  that  law,  to  be  just  and  enti- 
tled to  the  respect  and  obedience  of  the  people,  must  be 
fixed  and  certain,  —  an  invariable  rule  operating  in  the 
same  way  through  every  part  of  the  State.  It  was  in- 
sisted, also,  that  if  a  party  is  entitled  to  an  appeal  when- 
ever the  matter  in  dispute  exceeded  three  hundred  dollars 
in  a  civil  case,  he  ought  certainly  to  be  entitled  to  an 
appeal  in  a  case  involving  his  life,  his  liberty,  or  his  repu- 
tation. The  legislature  yielded  to  the  force  of  this  rea- 
soning, and  in  1843  established  a  "Court  of  Errors 
and  Appeals  in  Criminal  Cases,"  and  gave  it  ''only  appel- 
late jurisdiction  with  power  to  review  questions  of  law." 
Our  present  Constitution  has  given  to  the  Supreme  Court 
"appellate  jurisdiction  only,"  and  " in  criminal  cases  on 
questions  of  law  alone."  The  appellate  jurisdiction,  then, 
in  criminal  cases  under  the  act  of  1843,  and  the  appellate 
jurisdiction  in  criminal  cases  under  the  present  Constitu- 
tion, are  alike  confined  to  questions  of  law,  and  conveyed 
in  terms  1  ant  amount  and  equivalent. 


POLITICAL   AFFAIRS   IN   LOUISIANA.  119 

Under  the  act  of  1843,  it  was  contended  that  the  court, 
being  confined  in  its  jurisdiction  to  questions  of  law  alone, 
had  no  power  to  revise  the  decisions  of  inferior  tribunals 
in  criminal  cases  on  questions  of  continuance  and  new 
trial,  which  were  said  to  be  questions  of  discretion  merely. 
But  the  court  declared  that  as  much  injury  might  be 
inflicted  on  an  accused  by  an  improper  exercise  of  discre- 
tion as  by  the  erroneous  decision  of  any  point  of  law 
during  the  trial ;  that  this  discretion  meant  a  sound  legal 
discretion,  which  must  be  exercised  in  such  a  manner  as 
not  to  deprive  the  party  accused  of  any  right  guaranteed 
to  him  by  the  law  ;  and  that  when  such  discretion  was  im- 
properly exercised  the  acts  of  the  inferior  court  must  be 
reviewed.  This  is  the  doctrine  of  the  courts  of  England 
when  properly  understood,  the  doctrine  of  the  courts  of 
New  York,  of  Virginia,  New  Jersey,  Indiana,  Massachu- 
setts, and  Connecticut ;  and  it  was  invariably  maintained 
by  the  late  Court  of  Errors  and  Appeals  in  this  State. 
It  was  reasonable,  therefore,  to  suppose  that  the  framers 
of  our  Constitution,  by  inserting  in  it  the  provisions  of 
the  act  of  1843,  and  copying  substantially  the  words  of  the 
act,  were  aware  of  the  construction  they  had  uniformly 
received,  and  intended  that  in  the  Constitution  they 
should  have  the  same  meaning.  But  each  citizen  is  not 
at  liberty  to  construe  the  Constitution  for  himself.  He 
must  take  it  as  it  is  judicially  interpreted,  and  our  present 
Supreme  Court  have  decided  that  in  criminal  cases  ques- 
tions of  continuance  and  new  trial  are  purely  questions  of 
discretion,  which  they  have  not  the  power  to  review. 

In  the  case  of  a  man  who  was  prosecuted  for  murder, 
where  it  appeared,  on  the  affidavit  of  Mr.  B.  B.  Lee,  that 
the  accused  had  been  forced  into  trial  without  an  oppor- 
tunity of  summoning  his  witnesses  or  preparing  his  de- 
fense, and  where  the  jury — after  Judge  McHenry,  eager 
for  a  conviction,  had  compelled  them  by  a  species  of 


120  POLITICAL   AFFAIRS   IN   LOUISIANA. 

duress  to  render  a  verdict  — "  recommended  him  to  the 
mercy  of  the  court  011  the  ground  of  the  prisoner  not 
being  prepared  for  trial,"  the  Supreme  Court  refused  to 
interfere,  and  adhered  to  its  iron  rule.  That  man, 
whether  innocent  or  guilty,  is  now  a  convict  in  the  state 
penitentiary,  without  having  had  an  opportunity  of  de- 
fending himself.  The  judiciary  department,  therefore, 
fellow-citizens,  has  failed  from  a  defect  in  its  structure  : 
it  is  incapable  of  settling  principles  and  of  establishing 
the  law  in  cases  within  its  acknowledged  jurisdiction : 
and  it  has  been  denied,  by  the  construction  of  the  court, 
the  exercise  of  the  power  absolutely  necessary  for  the  pro- 
tection of  the  life,  the  liberty,  the  reputation,  and  the 
property  of  the  citizen.  I  speak  with  the  freedom  of 
history,  and  I  hope  without  offense.  But  1  speak  regard- 
less of  the  consequences  of  offense,  determined  as  a  free 
man  to  give  free  utterance  to  my  opinions  and  judgment, 
when  speaking  to  you  on  matters  of  high  public  importance. 
The  judiciary  department,  then,  of  our  government,  like 
the  legislative  department  of  the  government,  has  proved 
an  entire  failure.  The  only  remedy  is  in  the  overthrow 
of  the  Constitution.  The  Constitution  must  be  abolished. 
Fellow-citizens,  I  have  already  detained  you  so  long 
that  1  will  trouble  you  with  onlv  a  few  remarks  on  the 
executive  department  of  our  government.  The  struc- 
ture of  that  department  is  less  defective  than  that  of 
either  of  the  other  departments.  The  principal  objection 
to  it,  as  it  at  present  exists,  is  the  immense  patronage-  at- 
tached to  it  through  the  power  of  appointing  to  office. 
This  defect  it  has  been  and  still  is  in  the  power  of  the 
legislature;  in  some  measure  to  correct,  by  exercising 
their  constitutional  right  to  prescribe  the  mode  of  ap- 
pointment to  offices  established  by  law.  ]>ut  the  legisla- 
ture have  failed  in  this  part  as  in  other  parts  of  their 
duty.  1  need  not  speak  to  you,  fellow-citizens,  of  the 


POLITICAL  AFFAIRS   IN  LOUISIANA.  121 

manner  in  which  the  appointing  power  has  been  exercised 
under  the  present  Constitution.  [Several  persons  here 
called  out,  "  Go  on  !  go  on  !  Let  us  hear.  Let  us  hear  how 
it  has  been  exercised."  The  speaker  resumed.]  Look, 
fellow-citizens,  at  your  judiciary.  See  the  persons  that 
have  been  appointed  judges  in  the  city  of  New  Orleans, 
—  the  four  judges  of  your  Supreme  Court,  the  judges  of 
your  district  courts.  Extend  your  view  further,  and  see 
the  other  district  judges  throughout  the  entire  State ! 
Have  they  not  been  appointed  in  the  main  on  party 
grounds  and  by  way  of  rewarding  party  services  ?  Is  this 
right?  The  office  of  a  judge  is  of  a  pure  and  sacred 
nature.  It  ought  to  be  the  reward  of  learning,  virtue, 
and  ability,  and  not  the  prize  of  partisan  labors.  Look 
next  to  the  appointment  of  notaries  in  this  city.  Is  it  not 
well  known  that  men  were  appointed  who  were  utterly 
incompetent  to  discharge  their  duties,  —  men,  some  of 
whom  could  not  draw  the  most  common  act,  had  never 
read  a  book  of  law,  and  were  actually  incapable  of  even 
undertaking  the  business  of  the  offices  to  which  they  were 
appointed  ?  This  was  surely  a  gross  abuse  of  the  execu- 
tive power,  and  all  candid  men  who  reflect  upon  the  sub- 
ject must  admit  that  the  executive  department  of  the 
government  has  been  badly  administered. 

I  have  endeavored,  fellow-citizens,  to  point  out  clearly 
and  distinctly  some  of  the  leading  defects  in  the  Constitu- 
tion of  the  State,  and  in  the  legislation  under  it.  And  I 
declare  that,  in  my  best  judgment,  that  Constitution  and 
that  legislation  have  been  injurious  to  the  best  interests  of 
the  State  and  of  the  city,  and  that  those  interests  will  be 
still  further  injured,  and  the  prosperity  of  New  Orleans 
altogether  sacrificed,  unless  "  the  people  shall  come  to  the 
rescue."  I  can  see  no  means  of  effecting  a  change  from 
our  present  condition  except  by  a  change  of  men  and  a 
change  of  the  Constitution.  You  must  select  for  your 


122  POLITICAL   AFFAIRS   IN   LOUISIANA. 

representatives  in  the  state  legislature  and  in  the  national 
legislature  men  of  enlarged  and  enlightened  views,  who 
are  not  behind  the  times,  who  are  attached  to  the  Union, 
and  who  will  promote  internal  improvement.  In  select- 
ing your  representatives  in  Congress,  you  should  be  partic- 
ularly careful  to  choose  those  who  will  endeavor  to  obtain 
from  Congress  appropriations  to  aid  internal  improve- 
ment for  the  benefit  of  this  State  and  of  the  other  States. 
The  United  States  are  large  owners  of  public  lands,  of 
nearly  twenty-eight  millions  of  acres  in  Louisiana  alone. 
As  these  public  lands  are  benefited  by  the  construction 
of  roads,  Congress  has  pursued  a  wise  and  liberal  system 
of  donating  portions  of  them  in  aid  of  works  of  internal 
improvement.  There  is  no  reason  why  Louisiana  should 
not,  in  common  with  other  States,  participate  in  the  bene- 
fit of  the  system. 

And  now,  fellow-citizens,  while  the  "Whigs  are  advocat- 
ing this  system  of  reform  and  progress,  —  of  reform  in  the 
Constitution  and  laws,  remedying  injustice,  removing  un- 
wise and  illiberal  restrictions  and  prohibitions  upon  the 
legislature,  remodeling  and  rendering  efficient  the  judi- 
ciary department,  diminishing  the  power  of  the  executive 
by  depriving  it  of  a  patronage  corrupting  and  debasing  in 
its  tendencies,  protecting  and  advancing  the  interests  of 
commerce,  calling  forth  and  putting  into  useful  action  the 
now  dormant  energies  and  resources  of  the  State,  reviving 
credit  and  inviting  capital  amonir  iis.  stimulating,  cheer- 

O  1  O  O  ' 

ing,  and  re; warding  labor,  protecting  the  homestead  of  the 
poor  man  from  the  hand  of  oppression,  and  providing  a 
more  perfect  svstem  of  public  education,  —  Mr.  Taylor, 
a  leading  member  of  the  Democratic  party,  sneers  at  them 
as  being  conservative,  because  they  are  attached  to  the 
fundamental  principles  of  American  liberty,  and  can  rec- 
ognize no  aetion  as  truly  progressive  which  is  opposed  to 
those  principles  :  and  he  vauntingly  proclaims  that  he  and 


POLITICAL   AFFAIRS   IN   LOUISIANA.  123 

his  party  are  the  only  progressive  party  of  this  State. 
Impudent  assertion  !  Progressive  ?  In  what  ?  In  re- 
moving the  restrictions  and  injustice  of  the  present  Con- 
stitution? No.  Stand  fast.  The  Constitution  is  good 
enough  for  him.  In  introducing  the  benefits  of  a  free 
banking  system  ?  No.  Stand  fast.  In  promoting  the  cause 
of  public  education?  No.  Stand  fast.  He  is  satisfied 
with  what  has  been  already  done.  In  advancing  the  cause 
of  internal  improvements  ?  Alas !  the  Whigs  recommend 
it.  Progressive  in  what,  then  ?  In  that  only  which  leads 
to  ruin.  I  do  not  believe  that  the  great  body  of  the  Demo- 
cratic party  favors  such  progress  as  Mr.  Taylor  seems  to 
contemplate.  Ambitious  men,  anxious  to  display  a  zeal 
which  may  recommend  them  to  the  favor  of  party,  and 
burning  with  the  desire  to  become  prominent  leaders, 
frequently  lose  sight  of  the  safe  ground  on  which  they 
should  intrench  themselves,  and  running  ahead,  or,  more 
properly  speaking,  running  away  from  the  people,  assume 
positions  untenable  and  ruinous. 

Mr.  Soule,1  in  his  speech  delivered  last  month  in  Ope- 
lousas,  declared  that  "  there  cannot  be  two  opinions  among 
sensible  men  as  to  the  absolute  right  of  a  State  to  secede 
from  the  Union  if  she  chooses,''  and  he  quotes  General 
Jackson  as  sustaining,  in  what  he  (Mr.  Soule)  calls  tk  his 
counter  proclamation,"  the  right  of  secession.  But  you 
all  know,  fellow-citizens,  that  General  Jackson  in  his  proc- 
lamation expressly  denied  the  right  of  a  State  to  secede, 
and  declared  that  "  to  call  it  a  constitutional  right  can 
only  be  done  through  gross  error,  or  to  deceive  those  who 
are  willing  to  assert  a  right,  but  would  pause  before  they 
make  a  revolution  or  incur  the  penalties  consequent  on  a 
failure.''  The  speech  of  the  senator  at  Opelousas  and 
his  speech  on  the  admission  of  California  into  the  Union 
are  certainly  extraordinary  productions,  and  contain  opin- 

1  Pierre  Sould,  U.  S.  Senator  from  Louisiana  from  1845  to  1853. 


124  POLITICAL   AFFAIRS   IN   LOUISIANA. 

ions  and  doctrines  directly  at  war  with  the  great  principles 
of  the  Democratic  party.  In  his  speech  upon  the  admis- 
sion of  California  into  the  Union  he  declared  that  if  the 
people  of  the  South  quietly  submitted  to  the  measure, 
"  then  truly  would  those  masters  of  slaves  deserve  to  be 
slaves  themselves,  that  they  could  be  reconciled  to  a  con- 
dition where  to  submit  to  disgrace  were  prudence,  and  to 
be  contemptible  a  necessity."  In  his  speech  in  Opelousas, 
after  denouncing  in  strong  terms  all  the  measures  of  the 
compromise,  he  exclaimed,  "  What !  siibmit  to  evident  and 
undeniable  wrong !  Upon  my  heart  and  soul,  never, 
never  !  "  Oh  no,  fellow-citizens,  he  will  not  submit.  But 
he  will  "  endure.''  Still,  while  he  lives  he  shall  with  all 
the  energies  of  his  lungs  protest  against  it.  Mr.  Soule 
declares  that  the  right  to  secede  was  fully  and  most  em- 
phatically implied  in  the  Articles  of  Confederation,  and  is 
not  surrendered  by  the  Constitution.  The  Articles  of 
Confederation,  upon  their  very  face,  declare  that  they  are 
"  Articles  of  Confederation  and  perpetual  union."  And 
in  the  preamble  to  the  Constitution  of  the  United  States 
it  is  declared  that  the  people  of  the  United  States,  in  order 
to  form  a  more  perfect  union,  do  ordain  and  establish  the 
Constitution. 

Mr.  Soule  declares  that  a  State  in  seceding  would  only 
"exert  her  undoubted  privilege  as  one  of  the  sovereign 
confederates."  This  declaration  is  based  upon  the  notion 
that  the  Constitution  of  the  United  States  is  a  mere 
league  between  sovereign  States  who  have  preserved  their 
whole  sovereignty.  But  the  Constitution  of  the  United 
States  forms  a  government,  and  not  a  league.  It  oper- 
ates directly  upon  the  people  individually,  and  not  upon 
the  States.  Kach  State  has  surrendered  many  essential 
portions  of  its  sovereignty  for  the  purpose  of  constituting 
with  the  other  States  a  nation.  To  secede,  then,  is  not  to 
break  a  league,  but,  in  the  language  of  General  Jackson, 


POLITICAL  AFFAIRS   IN   LOUISIANA.  125 

to  destroy  the  unity  of  a  nation.  Mr.  Soule  declares, 
substantially,  that  his  allegiance  is  due  to  the  State  alone, 
and  not  to  the  United  States.  "  Does  not  each  of  us," 
says  he  in  his  speech,  "  possess,  do  we  not  exert  whenever 
we  please,  the  right  of  changing  our  allegiance  by  passing 
from  one  State  to  the  other,  or  to  a  foreign  state  ?  Who 
denies  it  ?  Who  doubts  it  ?  " 

Does  Mr.  Soule  suppose  that  his  allegiance  to  the  United 
States  would  be  changed  by  his  passing  from  Louisiana 
to  South  Carolina  or  to  Massachusetts?  Has  he  not 
taken  an  oath  of  allegiance  to  the  United  States?  Has 
he  not  sworn  to  support  the  Constitution  of  the  United 
States  ?  Does  not  that  Constitution  provide  that  the 
Constitution  and  the  laws  of  the  United  States  shall  be 
the  supreme  law  of  the  land,  and  does  it  not  also  provide 
that  the  members  of  the  several  state  legislatures,  and  all 
executive  and  judicial  officers,  both  of  the  United  States 
and  of  the  several  States,  shall  be  bound  by  oath  to  sup- 
port the  Constitution  ?  Does  it  not  contain  a  clause  ex- 
pressly conveying  a  right  to  punish  treason  against  the 
United  States  ?  and  is  not  treason  the  highest  breach  of 
allegiance  ?  How  can  a  citizen  of  the  United  States  say, 
then,  that  he  owes  no  allegiance  to  the  United  States, 
and  how  can  he  assert  that  his  allegiance  is  changed  by 
"  passing  from  one  State  to  the  other,  or  to  a  foreign 
state  "  ? 

I  can  scarcely  imagine  how  even  a  native  of  a  State, 
who  has  not  reflected  seriously  upon  the  true  character 
and  complicated  structure  of  our  government,  and  who 
has  been  educated  with  false  feelings  of  state  pride  and 
been  taught  the  extreme  doctrines  of  state  rights  in  the 
school  of  abstractionists  and  metaphysicians,  can  so  far 
lose  sight  of  the  operations  of  the  national  government 
as  for  a  moment  to  believe  that  he  owes  allegiance  to  his 
native  State  alone,  and  that  he  owes  no  allegiance  to  the 


126  POLITICAL  AFFAIRS   IN   LOUISIANA. 

United  States.  But  I  confess  myself  entirely  at  a  loss  to 
understand  how  an  adopted  citizen,  who  may  be  natural- 
ized in  a  Territory  or  in  the  District  of  Columbia,  who 
may  reside  during-  his  probationary  term  in  one  State  and 
may  be  admitted  in  another,  whose  right  of  citizenship 
has  been  conferred  upon  him  by  the  United  States  and 
not  by  the  State  in  which  he  may  chance  to  live,  and  who 
at  the  time  of  his  application  to  be  admitted  must  have 
renounced  and  abjured  all  allegiance  to  the  prince,  state, 
or  sovereignty  whereof  he  was  before  a  citizen  or  subject, 
and  sworn  to  support  the  Constitution  of  the  United 
States,  —  I  confess  myself  entirely  at  a  loss  to  understand 
how  such  a  person  can  believe  his  allegiance  is  not  due  to 
the  United  States.  These  notions  and  these  doctrines  of 
Mr.  Soule,  if  carried  out  into  practice,  would  destroy  our 
national  character  as  Americans  and  put  an  end  to  the 
Union. 

Mr.  Soule  says  "  he  is  not  for  breaking-  this  confed- 
eracy ;  he  is  not  for  advising  the  State  to  join  any  seces- 
sion movement  which  may  be  made  by  other  States." 
Oh  no!  lie  only  argues  the  right  in  the  abstract.  He 
would  have  the  people  still  endure.  But  this  is  a  dan- 
gerous philosophy.  Practically  speaking,  there  is  but  one 
step  from  the  conviction  as  to  a  right  and  its  enforcement, 
from  the  suffering  of  a  wrong  to  its  manly  redress.  Ours 
is  a  government  of  sentiment  and  affection,  and  if  the 
feelings  of  the  people  are  once  alienated  from  it,  the 
government  from  that  moment  is  at  an  end. 

What  is  it  that  the  advocates  of  secession  desire? 
What  woidd  they  have  who  seek  to  destroy  our  Union, 
and  to  erect  a  State  into  an  independent  nation  ?  Who 
is  not  proud  that  he  is  an  American?  The  sun  never 
shone  upon  a  happier  and  more  prosperous  people.  AYe 
have  increased  in  wealth,  in  population,  and  in  power 
with  u.  rapidity  which  has  astonished  mankind.  Our  ter- 


POLITICAL  AFFAIRS   IN   LOUISIANA.  127 

ritory  now  reaches  from  ocean  to  ocean.  The  power  and 
prowess  of  the  nation  have  been  illustrated  by  sea  and  by 
land.  Star  after  star  has  been  added  to  our  national  flag. 
The  freedom  of  our  institutions  excites  the  attention  and 
commands  the  admiration  of  the  world.  Our  country 
continues  to  be  the  asylum  of  the  oppressed  of  all  nations. 
Free,  happy,  and  powerful,  we  are  known  and  respected  in 
every  quarter  of  the  globe.  Such  are  the  results  of  our 
Union.  But  what  would  be  our  condition  if  we  were  divided 
into  rival  and  hostile  States  ?  I  turn  with  horror  from 
the  contemplation  of  the  misery  which  would  await  us  at 
home,  and  can  see  nothing  but  degradation  abroad.  Sup- 
pose Louisiana  were  to  secede  from  the  Union  ;  suppose 
one  of  her  sons  in  a  foreign  land  were  to  be  threatened 
by  the  minions  of  a  tyrannical  government  with  wrong 
and  injury :  what  more  ridiculous  and  insignificant  ob- 
ject can  be  imagined  than  such  a  person  claiming  pro- 
tection in  the  name  of  the  sovereign  nation  of  Louisi- 
ana, and  pointing  to  a  flag  with  a  pelican  on  it  as  the  em- 
blem of  his  country  ?  Suppose  the  Union  to  continue  : 
what  more  sublime  spectacle  on  earth  could  there  be  ex- 
hibited than  the  American  in  a  foreign  land  unfurling 
the  glorious  banner  of  the  stars  and  stripes,  proudly 
pointing  to  the  bird  of  liberty  as  the  emblem  of  his  coun- 
try, and,  in  the  name  of  the  United  States  of  America, 
demanding  justice  even  from  the  tyrant  on  his  throne? 
[The  speaker  was  here  interrupted  by  applause  ;  after  a 
moment  or  two  he  resumed.] 

Fellow-citizens,  your  applause  shows  that  it  is  unneces- 
sary to  pursue  the  theme.  I  have  spoken  of  high  matters, 
and  I  trust  not  unworthily.  I  shall  detain  you  no  longer. 
Let  your  votes  at  the  polls  show  that  you  are  the  friends 
of  true  progress  and  reform,  of  liberty  and  the  Union. 


LECTURE   ON   THE   LAW. 

[For  many  years  Mr.  Hunt  delivered  an  opening  address  to 
the  law  students  of  the  University  of  Louisiana.  The  manu- 
scripts left  by  him  show  that  he  revised,  each  and  every  year, 
the  definitions  of  the  law.  The  selected  lecture  given  below  was 
probably  the  last  delivered  by  him,  although  the  total  absence 
of  any  dates  upon  his  books  renders  it  impossible  to  accu- 
rately fix  the  time  of  the  delivery  of  the  particular  lecture  here 
given.] 

WELCOME,  gentlemen,  to  the  Tulane  University  of 
Louisiana!  Welcome  to  this  temple  of  Science,  dedicated 
for  a  place  of  instruction  and  study,  for  the  communica- 
tion of  knowledge  and  the  circulation  of  thought !  And 
specially  welcome  to  this  hall  set  apart  for  the  science  of 
Law! 

Gentlemen,  the  chief  end  of  all  government  is  to 
secure  to  the  governed  the  blessings  of  liberty.  And  this 
end  can  only  be  attained  by  the  education  of  the  people. 
It  is  accordingly  the  paramount  duty  of  a  good  govern- 
ment to  foster  and  promote  public  education.  A  people 
that  thoroughly  understand  their  rights  will  appreciate 
and  maintain  them.  The  foundation  of  despotism  is 
ignorance  ;  of  popular  rule  or  republicanism,  knowledge. 
Knowledge  is  the  parent  of  Liberty,  and  her  natural  and 
only  safe  guardian. 

Impressed  with  these  truths,  Louisiana  ordained  by 
her  Constitution  in  184")  the  establishment  of  free  public 
schools  throughout  the  State,  of  a  seminary  of  learning, 
and  of  ;i  university  in  the  city  of  New  Orleans.  Under 


LECTURE   ON  THE   LAW.  129 

this  authority,  and  as  a  part  of  the  university,  the  legisla- 
ture established  a  department  of  law,  and  founded  the 
college  of  which  you  are  matriculated  sons.  To  the 
study  of  law  you  are  about  to  devote  yourselves ;  and  of 
that  science  it  is  my  province  now  to  speak. 

Law,  in  its  most  general  and  comprehensive  sense,  sig- 
nifies a  rule  of  action,  and  applies  indiscriminately  to 
every  kind  of  action,  whether  animate  or  inanimate, 
rational  or  irrational.  Thus  we  say  the  laws  of  motion, 
of  gravitation,  or  of  mechanics,  as  well  as  the  laws  of 
nature  and  of  nations,  and  the  like.  The  Supreme  Being, 
the  Creator  of  all,  when  he  formed  the  universe,  and 
created  matter  and  various  classes  of  beings,  animate  or 
inanimate,  in  his  infinite  wisdom,  allotted  to  every  class 
its  condition  and  appropriate  functions.  Order,  propor- 
tion, and  fitness  pervade  the  whole.  The  whole  world 
around  us  and  the  whole  world  within  us  are  ruled  by 
law.  We  see,  we  feel,  we  regard  with  wonder  and  admi- 
ration the  rule.  Our  very  spirits,  which  yet  seem  so 
spiritual,  so  subtle,  so  free,  are  subject  to  it.  The  mate- 
rial world,  the  heavenly  bodies,  the  earth,  and  the  differ- 
ent elements  of  the  universe  have  their  laws ;  beasts  have 
their  laws ;  man  has  his  laws.  The  celestial  as  well  as 
the  terrestrial  world  knows,  and,  without  swerving,  ob- 
serves and  obeys  its  prescribed  course.  And  the  Creator, 
the  preserver  and  ruler  of  all  things,  acts  not  without  an 
eternal  decree,  never  violating  or  disregarding  laws,  but 
adjusting,  combining,  and  so  adapting  them  to  the  accom- 
plishment of  his  purpose. 

This  truth  is  illustrated  in  the  grandest  and  most 
sublime  of  the  works  in  nature,  and  in  the  least  and  low- 
liest, —  in  the  laws  which  regulate  the  planetary  motions, 
the  range  of  planets,  suns,  and  adamantine  spheres  wheel- 
ing unshaken  through  the  void  immense,  and  in  those 
which  form  a  drop  of  water.  The  vastness  and  multi- 
9 


130  LECTURE   ON   THE   LAW. 

tude  of  the  celestial  bodies,  the  laws  which  astronomy  in 
its  higher  branches  discloses  and  applies,  the  distances 
which  it  spans,  the  periods  which  it  estimates,  impart  a 
sublimity  which  lifts  the  soul  to  the  heavens.  The  law 
of  gravitation  is  the  most  universal  law  known  to  us.  It 
prevails  apparently  through  all  space.  But  it  does  not 
prevail  alone.  Its  function  is  to  balance  other  forces,  of 
which  we  only  know  that  these  again  are  needed  to 
balance  the  force  of  gravitation.  Each  force,  if  left  to 
itself,  would  be  destructive  of  the  universe.  Were  it  not 
for  the  force  of  gravitation,  the  centrifugal  forces  which 
impel  the  planets  would  fling  off  into  space.  Were  it 
not  for  these  centrifugal  forces,  the  force  of  gravitation 
would  dash  them  against  the  sun.  The  orbits,  therefore, 
of  the  planets,  with  all  that  depends  upon  them,  are  deter- 
mined by  the  adjustment  between  the  law  of  gravitation 
and  other  laws  which  are  less  known,  so  as  to  produce 
and  maintain  the  existing  solar  system.  This  grand 
example  of  the  principle  of  adjustment  gives  no  idea  of 
the  extent  to  which  the  principle  is  required  and  is 
adopted  in  the  works  of  nature.  The  revolution  of  the 
seasons,  seed-time  and  harvest,  depend  on  the  law  of 
gravitation  in  this  sense,  that  if  that  law  were  disturbed, 
or  if  it  were  inconstant,  they  would  be  disturbed  and  in- 
constant also.  But  the  seasons  equally  depend  071  a  mul- 
titude of  other  laws,  —  laws  of  heat,  laws  of  light,  laws 
relating  to  fluids,  to  solids,  and  to  gases,  and  to  mag- 
netic attractions  and  repulsions,  —  each  of  which  laws  is 
invariable  in  itself,  but  each  of  which  would  produce 
utter  confusion  if  it  were  allowed  to  operate  alone,  or  if 
it  were  not  balanced  against  others  in  the  right  propor- 
tion. The  seasons  depend  not  only  on  the  facts  and  laws 
which  astronomy  reveals,  but  on  other  sets  of  facts  and 
other  sets  of  laws  revealed  by  other  sciences,  such  as 
chemistry,  electricity,  and  geology. 


LECTURE   ON   THE   LAW.  131 

Chemistry  abounds  with  illustrations  of  the  law  of 
forces  in  mutual  adjustment.  The  forces  which  deter- 
mine chemical  combinations  all  work  under  sharp  and 
definite  rules.  Some  of  the  laws  which  regulate  this  com- 
bination are  wonderful  and  beautiful,  of  great  exactness, 
having  invariable  relations  to  numbers  and  proportion. 
Each  elementary  substance  has  its  own  combining  propor- 
tions with  other  elements,  so  that,  except  in  these  pro- 
portions, no  chemical  union  can  take  place  at  all.  And 
when  chemical  union  does  take  place,  the  compounds 
which  result  have  different  and  even  opposite  powers 
according  to  the  different  proportions  employed.  The 
same  elements  combined  in  one  proportion  are  sometimes 
a  nutritious  food  or  a  grateful  stimulant  soothing  and 
sustaining  the  powers  of  life ;  whilst,  combining  in 
another  proportion,  they  may  be  a  deadly  poison,  paralyz- 
ing the  heart  and  carrying  agony  along  every  nerve  and 
fibre  of  the  animal  frame. 

The  whole  progress  of  plants  from  the  seed  to  the  root, 
and  thence  from  the  root  to  the  seed  again,  the  method 
of  animal  nutrition,  digestion,  and  all  other  branches  of 
vital  economy,  are  not  left  to  chance,  but  are  performed 
in  a  wondrous  manner,  and  guided  by  unerring  rules  laid 
down  by  the  great  Creator.  Thus  it  is  through  the  whole 
of  nature  :  laws  everywhere,  —  laws  in  themselves  inva- 
riable, but  so  worked  and  so  adjusted  as  to  produce 
effects  of  inexhaiistible  variety,  by  being  pitched  against 
each  other  and  made  to  hold  each  other  in  restraint. 
Not  a  tree,  not  a  flower,  not  a  blade  of  grass,  not  even  a 
drop  of  water,  not  one  of  the  countless  varieties  of  form 
in  clouds,  but  is  ruled  by  law,  by  forces  which  are  free 
only  within  the  bounds  of  law  :  — 

'•  All  are  but  parts  of  one  stupendous  whole, 
Whose  bodv  Nature  is.  and  God  the  soul : 


132  LECTURE   ON   THE   LAW. 

That  changed  through  all,  and  yet  in  all  the  same, 
Great  in  the  earth  as  in  the  ethereal  frame, 
Warms  in  the  sun,  refreshes  in  the  breeze, 
Glows  in  the  stars,  and  blossoms  in  the  trees  ; 
Lives  through  all  life,  extends  through  all  extent, 
Spreads  undivided,  operates  unspent  ; 

To  him  no  high,  no  low,  no  great,  no  small ; 
He  fills,  he  bounds,  connects,  and  equals  all !  " 

Such  is  law  in  its  general  and  most  comprehensive 
sense.  Hooker  describes  it  in  terms  often  cited,  but  never 
stale  or  vapid.  Of  Law  there  can  be  no  less  acknow- 
ledged than  that  her  seat  is  the  bosom  of  God,  her  voice 
the  harmony  of  the  world  ;  all  things  in  heaven  and  earth 
do  her  homage,  the  very  least  as  feeling  her  care,  and  the 
greatest  as  not  exempted  from  her  power,  —  both  angels 
and  men,  and  creatures  of  what  condition  soever,  thought, 
and  manner,  yet  all  admiring  her  as  the  mother  of  their 
peace  and  joy.  There  are  no  phenomena  visible  to  man 
of  which  it  is  true  to  say  that  they  are  governed  by  one 
invariable  force.  That  which  does  govern  them  is  always 
some  variable  combination  of  invariable  forces.  No  law 
of  nature — that  is,  no  elementary  force  of  nature — is 
liable  to  change.  But  every  law  of  nature  is  liable  to 
counteraction ;  and  the  rule  is  that  laws  are  made 
habitually  to  counteract  each  other  in  precisely  the  man- 
ner and  degree  that  some  definite  result  requires.  No 
man  can  have  any  difficulty  in  believing  that  there  are 
natural  laws  of  which  he  is  ignorant  ;  nor  in  conceiving 
that  there  may  be  beings  who  do  know  them  and  can  use 
them,  even  as  he  himself  now  uses  the  few  laws  with 
which  lie  is  acquainted.  The  relation  in  which  God 
stands  to  those  rules  of  his  government  which  are  called 

O 

laws  is  of  course  a  mystery  to  us.      But  the  very  idea  of 
a  Creator  involves  the  idea  not  merely   of    a    being   by 


LECTURE   ON   THE   LAW.  133 

whom  the  properties  of  matter  are  employed,  but  of  a 
being  from  whose  will  the  properties  are  derived.  Our 
own  experience  shows  that  the  universal  reign  of  law  is 
perfectly  consistent  with  a  power  of  making  those  laws 
subservient  to  design,  even  when  the  knowledge  of  them 
is  but  slight,  and  the  power  even  slighter.  How  much 
more  easy,  how  much  more  natural,  to  conceive  that  the 
same  universality  is  compatible  with  the  exercise  of  that 
supreme  will,  before  which  all  are  known,  and  to  which 
all  are  servants  !  There  is  nothing  in  religion  incom- 
patible with  the  belief  that  all  exercises  of  God's  power, 
whether  ordinary  or  extraordinary,  are  effected  through 
the  instrumentality  of  means  ;  that  is  to  say,  by  the  in- 
strumentality of  natural  laws  brought  out,  as  it  were,  and 
used  for  a  divine  purpose.  Advancing  knowledge  of 
physical  law  has  been  constantly  accompanied  with  ad- 
vancing power  over  the  physical  world,  and  has  enabled 
us  to  do  a  thousand  things  which  a  few  centuries  ago 
would  have  been  considered  supernatural.  The  man  of 
real  science  recognizes  more  than  the  superficial  observer 
the  concord  between  physical  and  moral  laws,  between 
science  and  religion.  Both  come  from  one  great  source  ; 
and  every  step  that  we  make  in  the  investigation  of  the 
physical  laws  and  of  their  principles  ought  to  lead  us  to 
a  nearer  and  better  acquaintance  with  those  of  the  moral 
universe,  and  with  the  majesty  and  grandeur  of  him  who 
has  wished  to  grant  us  the  growing  evidence  of  himself 
and  of  his  attributes,  by  allowing  his  works,  perfect  from 
the  beginning,  to  be  unveiled  and  explained  to  our  re- 
searches. 

Law,  universal,  constant  in  its  influence,  uniform  in  its 
operation,  supreme  in  its  obligation,  its  power  to  com- 
mand and  enforce  obedience,  must  emanate  from  a  law- 
giver infinitely  wise  and  transcendently  powerful.  "  I 
had  rather,"  said  Bacon,  "  believe  all  the  fables  in  the 


134  LECTURE   ON   THE   LAW. 

Legend  and  the  Talmud  and  the  Alcoran  than  that  this 
universal  frame  is  without  a  mind.  And  therefore  God 
never  wrought  miracle  to  convince  atheism,  because  his 
ordinary  works  convince  it."  Our  address,  by  an  easy 
and  a  natural  transition,  here  brings  before  us  the  rights 
and  duties  of  man  for  consideration  ;  in  a  word,  juris- 
prudence. 

Law  in  a  restricted  sense  denotes  the  rules  by  which  man 
is  commanded  to  regulate  his  conduct.  Its  precepts  are 
for  the  guidance  of  man  alone  as  a  moral,  intellectual,  and 
accountable  being.  In  this  sense  they  form  the  subject  of 
jurisprudence.  When  law  is  applied  to  any  other  object 
than  man,  it  ceases  to  contain  two  of  those  essential  in- 
gredients, disobedience  and  punishment.  Commanding 
and  obeying  are  the  two  foundations  of  all  human  society. 
They  are  relatives ;  they  mutually  respect,  engender,  and 
conserve  one  the  other.  We  are  told,  a  wise  man  being 
once  asked  why  the  commonwealth  of  Sparta  was  so 
flourishing,  whether  it  was  because  its  kings  commanded 
well,  replied,  Nay,  rather  because  the  citizens  obey  well ; 
for  if  the  subjects  once  refuse  to  obey,  and  shake  off  the 
yoke,  the  state  must  necessarily  fall  to  the  ground. 

Man  is  a  social  being.  His  inclinations  and  wants, 
physical  and  moral,  irresistibly  compel  him  to  associate 
with  his  kind  :  and  ho  has  accordingly  never  been  found, 
in  any  age  or  country,  in  any  state  other  than  the  social. 
In  no  other  could  he  exist  ;  and  in  no  other,  indeed,  were 
it  possible  for  him  to  exist,  could  he  attain  to  a  full  devel- 
opment of  his  moral  and  intellectual  faculties,  or  raise 
himself  in  the  scale  of  beings  much  above  the  brute  crea- 
tion. This  necessary  social  state  cannot  exist  without 
government. 

What  then  is  that  constitution  of  human  nature  which 
renders  it  impossible  for  society  to  exist  without  govern- 
ment ?  Physiology  shows  the  structure  of  man :  the 


LECTURE   ON   THE   LAW.  135 

superiority  of  the  human  organization,  its  various  func- 
tions, and  all  that  is  connected  with  the  animal  life  of 
man,  over  those  of  the  rest  of  the  animate  creation.  Man 
is  endowed  with  sympathy  or  fellow-feeling  ;  that  is,  a 
feeling  for  the  pains  and  pleasures  of  others,  though  un- 
connected with  any  interest  of  his  own  or  standing  in  no 
direct  connection  with  him.  This  feeling  is  of  a  pecul- 
iarly expansive  character,  and  constitutes  an  "  essential 
attribute  of  the  ethic  character  of  man."  It  can  only  be 
proved  by  our  consciousness  of  it,  and  its  effects  being 
observable  everywhere.  Some  writers  would  reduce  it  to 
self-interest,  to  egotism.  But  this,  says  Lieber,  would 
nearly  destroy  the  basis  of  all  that  is  good  or  worth  living 
for.  "  It  may  be  decided  in  a  practical  way  only  by  ask- 
ing, are  you  a  brother,  or  a  son,  or  a  friend  ?  Have  you 
ever  seen  a  venerable  old  man  insulted  by  a  wanton 
youth?  Have  you  never  read  a  satisfactory  vindication 
of  a  person  against  whom  grave  and  plausible  charges 
had  been  brought  ?  And  had  you  heard  of  these  things 
without  feeling  joy  or  pain  ?  Has  the  perseverance  of 
Columbus  never  reached  your  ears?  Who  learns  without 
emotion  his  tumultuous  and  intense  thoughts  and  feel- 
ings when  he  found  that,  in  spite  of  every  difficulty  and 
danger,  he  had  accomplished  his  object,  revealed  the  great 
mystery  of  the  ocean,  triumphantly  established  his  theory 
which  had  been  the  scoff  of  sages,  and  secured  to  him- 
self a  glory  durable  as  the  world  itself,  and,  landing 
011  the  New  World,  threw  himself  on  the  earth,  and  re- 
turned thanks  to  God  with  tears  of  joy  ?  Has  no  drama 
ever  touched  you  ?  On  what  indeed  is  nearly  the  whole 
literature  of  belles-lettres  founded,  if  not  on  sympathy,  — 
sympathy  even  with  fictitious  beings?"  The  existence  of 
the  family,  love  of  country,  friendship,  public  spirit,  and 
whatever  is  noblest  or  best  in  man  are,  in  whole  or  in 
part,  founded  on  this  great  element  of  the  human  soul. 


136  LECTURE   ON   THE   LAW. 

The  constitution  of  man's  nature  makes  us  feel  more 
intensely  what  affects  us  directly  than  what  affects  us 
indirectly  through  others  ;  in  other  words,  our  direct  or 
individual  feelings  are  stronger  than  our  sympathetic  or 
social  feelings.  This  necessarily  leads  to  conflict  between 
individuals.  Each,  in  consequence,  has  greater  regard 
for  his  own  safety  and  happiness  than  for  the  happiness 
or  safety  of  others,  and  where  these  come  in  opposition 
is  ready  to  sacrifice  the  interest  of  others  to  his  own  : 
and  hence  the  tendency  to  a  universal  state  of  conflict 
between  individual  and  individual,  accompanied  by  the 
passions  of  suspicion,  jealousy,  anger,  and  revenge,  fol- 
lowed by  insolence,  fraud,  and  cruelty,  and,  if  not  pre- 
vented by  some  controlling  power,  ending  in  a  state  of 
universal  discord  and  confusion,  destructive  of  the  social 
state  and  of  the  ends  for  which  it  is  ordained.  This 
controlling  power,  wherever  vested  or  by  whomsoever 
exercised,  is  government. 

Society  and  government,  then,  are  intimately  con- 
nected. Both  are  necessary  to  the  existence  of  our  race, 
and  equally  of  divine  ordination  :  rules  and  laws  are  a 
mode  of  God's  government  of  the  world,  and  rules  and 
laws  are  a  necessary  mode  of  human  government. 

The  constitution  of  our  nature,  which  renders  govern- 
ment in  some  form  or  other  necessary,  deserves  a  fur- 
ther and  more  searching  examination.  Man  is  endowed 
with  intellect,  the  faculty  of  reflection,  lie  analyzes, 
compares,  combines,  abstracts,  concludes,  and  judges,  and 
elevates  himself  above  the  sensible  world.  In  forming 
notions  of  his  nature,  a  comparison  is  often  made 
between  men  and  animals,  the  only  creatures  endowed 
with  thought  that  fall  under  our  senses.  There  are 
writers  who  maintain  that  the  mental  powers  of  the 
highest  animal  approach  so  closely  to  those  of  the  lowest 
man  that  it  may  be  said  there  is  no  essential  difference, 


LECTURE   ON   THE   LAW.  137 

but  merely  a  gradual  transition,  and  no  ethic  conclusion 
can  be  drawn  tlierefrom.  But  certainly  the  comparison 
is  favorable  to  mankind.  On  the  one  hand,  we  see  a 
creature  whose  thoughts  are  not  limited  by  any  narrow 
bounds  either  of  place  or  time  ;  who  carries  his  researches 
into  the  most  distant  regions  of  this  globe  and  beyond 
this  globe,  to  the  planets  and  heavenly  bodies ;  looks 
backward  to  consider  the  first  origin,  at  least  the  history 
of  the  human  race ;  casts  his  eye  forward  to  see  the 
influence  of  his  actions  upon  posterity,  and  the  judgments 
which  will  be  formed  of  his  character  a  thousand  years 
hence,  —  a  creature  who  traces  causes  and  effects  to  a  great 
length  and  intricacy,  extracts  general  principles  from 
particular  appearances,  improves  upon  his  discoveries, 
corrects  his  mistakes,  and  makes  his  very  errors  profit- 
able. On  the  other  hand,  we  are  presented  with  a 
creature  the  very  reverse  of  this :  limited  in  its  observa- 
tions and  reasonings  to  a  few  sensible  objects  which 
surround  it,  without  curiosity,  without  foresight,  blindly 
conducted  by  instinct,  and  attaining  in  a  short  time  its 
utmost  perfection,  beyond  which  it  is  never  able  to 
advance  a  single  step.  What  a  wide  difference  between 
these  creatures  ! 

Among  the  other  excellencies  of  man,  this  is  one,  that 
he  can  form  an  idea  of  perfections  much  beyond  what  he 
has  experience  of  in  himself,  and  is  not  limited  in  his 
own  conception  of  wisdom  and  virtue.  All  the  world  is 
agreed  that  human  understanding  falls  infinitely  short  of 
perfect  wisdom. 

Undoubtedly  there  is  mental  action  in  the  brute  ani- 
mal :  the  animal  thinks,  but  man  reflects.  "  A  mule," 
said  Frederick  the  Great,  "  though  it  might  have  made 
ten  campaigns  under  Prince  Eugene,  would  not  become 
for  all  that  a  better  tactician."  The  animal  is,  with  rare 
conceptions,  confined  within  its  own  sensuality,  —  the 


138  LECTURE   ON   THE   LAW. 

sphere  and  influence  of  its  senses  alone  ;  they  direct  its 
actions ;  it  lives  and  moves  within  the  sensible  world 
alone.  But  man,  belonging  in  part  to  the  sensible  world, 
and  subject  according  to  his  sensuality  and  its  laws,  in 
which  everything  is  determined,  has,  on  the  other  hand, 
the  great  privilege  to  determine  himself.  lie  can  guide 
and  determine  himself  by  reason  within  certain  limits 
given  him  by  the  material  world  ;  he  can  choose.  Accord- 
ing to  his  sensuality  man  is  bound  ;  if  he  feels  pain,  he 
cannot  help  being  prevented  by  it  from  freely  thinking. 
According  to  his  rationality  he  is  free ;  he  reflects  and 
chooses,  —  he  enjoys  freedom.  His  will  is  free,  because 
he  can  determine  himself  with  regard  to  willing  an  object 
of  which  he  is  conscious.  The  proof  is,  our  consciousness 
of  being  able  to  will  something  which  is  repugnant  to  our 
sensuality,  or  which  may  cost  us  the  sacrifice  of  our 
warmest  affections. 

Now,  a  motive  is  that  which  moves  or  tends  to  move 
the  mind  in  a  particular  direction.  Man  is  exposed  to 
certain  motives  in  common  witli  the  lower  animals.  But 
there  are  other  motives,  motives  which  operate  upon  him 
which  can  never  operate  upon  them.  Among  the  motives 
which  operate  upon  him,  man  has  a  selecting  power.  lie 
can  bring  them  to  the  test  of  conscience.  He  can  reason 
on  his  own  character,  and  when  he  knows  that  a  given 
motive  will  be  too  strong  for  him,  if  lie  will  allow  him- 
self to  think  of  it,  lie  can  shut  it  out  of  his  mind  by 
"  keeping  the  door  of  his  thoughts.''  Motives  of  all 
kinds,  the  highest  and  the  lowest,  rise  in  the  mind  unbid- 
den. It  is  by  an  act  of  will  that  we  summon  different 
motives  to  the  presence  of  the  deliberative  faculties,  that 
we  cherish  one  and  dismiss  another,  or  determine  to  spend 
our  thought  and  time  in  making  choice  between  motives 
which  are  conflicting.  "  I.^olcnl'm  lib<>r<i  cut,  qim,  positis 
omnibux  w<y ///'*<//*,  ad  (tr/endum  potent  at/ere  cf,  non 


LECTURE   ON  THE   LAW.  139 

aff ere."  (Power  is  free,  which,  all  the  requisites  for  action 
being  presented,  is  able  to  act  and  not  to  act.)  If  man 
acts,  he  may  be  impelled  by  instinct  or  prompted  by  his 
sensuality,  —  for  instance,  when  he  drinks,  being  thirsty, 
or  struggles  to  save  himself  from  drowning  ;  or  he  may 
determine  his  own  will,  in  which  case  he  may  be  actuated 
either  by  motives  of  expediency,  when  he  simply  judges 
whether  his  action  will  lead  to  the  object  he  has  in  view, 
—  for  example,  when  he  grinds  his  sickle  to  reap  his 
wheat,  —  or  by  moral  motives,  which  make  an  action  good 
or  bad,  praiseworthy  or  hateful,  deserving  of  applause  or 
condemnation. 

The  subtlest  intellect,  the  most  vigorous  mind,  unaided 
by  anything  else,  cannot  arrive  at  any  other  idea  with 
regard  to  an  action  than  that  of  obedience,  fitness,  cor- 
rectness, respecting  the  choice  of  means  for  the  object  in 
view.  Yet  we  find  with  all  men  a  feeling  entirely 
independent  of  the  expediency  or  judiciousness  of  our 
action,  —  the  moral  element  in  the  human  soul,  the 
consciousness  of  right  and  wrong.  This  original  con- 
sciousness of  right  and  wrong  is  called  conscience, 
from  the  Latin  word  conscientia,  from  con  and  scire, 
to  know,  because  "  it  is  the  most  important  of  the 
different  species  of  consciousness."  Some  philosophers 
have  maintained  and  others  have  denied  what  conscience 
is,  and  its  very  existence.  Locke  calls  conscience  "  our 
own  opinion  or  judgment  of  the  moral  rectitude  or 
pravity  of  our  own  actions,"  and  proceeds  to  show  that  it 
cannot  be  inborn.  The  very  term  "  opinion "  involves 
the  idea  that  it  is  something  arrived  at  by  reflection, 
which  is  ail  act  of  the  mind  ;  how  then  can  it  be  inborn  ? 
A  faculty  may  be  inborn,  an  action  cannot.  According 
to  Locke,  the  mind  is  a  blank  paper  on  which  our  senses 
write  impressions,  which  the  intellect  analyzes  and  com- 
bines. According  to  some  others,  it  analyzes  and  combines 


140  LECTURE   ON   THE   LAW. 

the  perception  of  things,  but  it  does  not  infuse  new  ele- 
ments of  thought  or  feeling'. 

Conscience  is  then  an  original  consciousness  of  right 
and  wrong,  good  and  bad.  Like  every  species  of  con- 
sciousness it  begins  with  an  indistinct  feeling,  and 
becomes  clearer  the  more  effectually  the  matured  mind 
acts  upon  it.  So  it  is  with  all  ideas  we  receive  through 
the  senses.  The  sense  of  sight  is  first  but  dim.  The 
mind  must  act  upon  the  impression  received,  and  the 
sense  itself  must  be  practiced  before  it  becomes  clear. 
Astonishing  instances  of  the  keenness  which  can  be  ac- 
quired by  the  human  eye,  and  of  the  rapidity  with 
which  it  can  observe  distinctive  marks,  are  on  record. 
Yet  the  sense  of  sight  is  innate,  or  the  idea  of  color  could 
not  possibly  have  been  arrived  at.  So  man  feels,  at 
doing  certain  things,  that  he  ought  to  have  done  them  or 
not,  and  by  the  operation  of  the  mind  constantly  ana- 
lyzing and  generalizing  he  arrives  gradually  at  more 
distinct  ethic  notions.  Conscience  is  developed,  culti- 
vated, made  delicate  in  connection  with  reflection,  the 
development  of  our  feelings  in  general,  and  experience  : 
but  the  consciousness  of  riirht  and  wrong  is  primordial 

O  O  i 

and  general. 

The  writers  who  deny  that  conscience  is  universal  and 
innate  urge  the  difference  of  moral  opinion,  and  the  fact 
that  some  tribes  actually  consider  laudable  what  others 
punish  as  the  vilest  crime.  The  fact  is  admitted  that 
people  have  burned  and  racked  their  fellow- creatures,  — 
Catholics  Protestants,  and  Protestants  Catholics;  that 
some  of  them,  at  least,  believed  they  did  right  while  they 
perpetrated  their  acts,  every  one  knows.  All  these  perse- 
cutors said  that  they  relied  for  the  rectitude  of  their 
actions  on  the  l>ible. 

The  Spaniards  who  conquered  the  southern  continent 
of  America  committed   every  species  of  cruelty  and  op- 


LECTURE   ON  THE   LAW.  141 

pression.  We  read  of  Indians  being  slowly  worn  down 
by  excessive  labor  to  satisfy  the  diabolical  lust  for  gold. 
We  find  the  names  of  mastiffs,  bloodhounds,  handed 
down  to  posterity,  because  they  distinguished  themselves 
in  hunting  and  tearing  the  Indians,  for  which  their  mas- 
ters received  the  regular  share  of  booty  allotted  to  an 
armed  man !  "  Leoncico "  was  the  name  of  the  blood- 
hound belonging  to  Nuiiez.  And  all  this,  it  is  urged, 
"in  return  for  genuine  kindness  and  humanity;  for  Las 
Casas  testified,  the  Indians  always  did  more  by  way  of 
hospitality  than  they  were  bid  to  do.  Refined  torments 
were  paid  back  in  return  for  unsuspicious  and  kind  recep- 
tion. Those  Spanish  adventurers,  cruel  almost  without 
parallel,  from  the  meanest  of  motives,  the  yearning  for 
riches,  were  most  chivalrous,  urbane,  and  charitable  to- 
ward each  other,  ready  to  make  any  sacrifice.  Those 
that  were  vindictive,  bloodthirsty,  and  without  any  faith 
toward  the  Indian  were  magnanimous  and  full  of  honor 
toward  each  other."  1  The  principle  of  morality,  therefore, 
had  not  been  plucked  out  of  their  hearts,  but  bigotry  and 
avarice  had  perverted  their  judgment  and  moral  feeling. 
The  fact  that  bands  of  criminals  always  form  a  certain 
moi-al  code  among  themselves  shows  the  inalienably  moral 
character  of  man,  however  perverted  his  judgment  and 
feeling  may  be  by  passions.  A  robber  or  thief  might  feel 
indignant  at  theft  or  cheat  within  the  band. 

The  moral  codes  of  all  nations  are  more  uniform  than 
discordant.  There  is  a  natural  or  innate  horror  at  cer- 
tain specific  crimes,  which  cannot  be  denied.  "  We 
know,"  says  Dr.  F.  Lieber,  "  that  man  can  be  reconciled 
to  the  worst  by  custom  ;  yet,  on  the  other  hand,  it  takes 
time  to  denaturalize  him  as  to  some  actions  ;  for  instance, 
murder.  The  moral  principle,  it  is  contended,  is  absolute 

1  Irving,  Voyages  of  the  Companions  of  Columbus. 


142  LECTURE   ON   THE   LAW. 

and  universal.  Individuals,  nations,  may  rest  in  very  dif- 
ferent ways,  —  sitting,  reclining  in  hammocks,  or  lying  on 
couches ;  but  all  must  acknowledge  the  principle  that  rest 
is  requisite  after  exertion."  In  regard  to  the  uniformity 
even  of  laws,  M.  Michelet,  in  a  work  on  the  origin  of 
French  law,  says :  "  We  have  studied  the  juridical  sym- 
bol under  the  two  points  of  view  of  its  age  and  nation- 
ality, which  diversify  it  infinitely  ;  nevertheless,  whatever 
variety  may  be  discovered,  unity  predominates.  It  is  an 
imposing  spectacle  to  find  the  principal  legal  symbols 
common  to  all  countries  throughout  all  ages.  In  truth, 
to  one  who  considers  not  the  human  race  as  the  great 
family  of  God,  there  is  in  these  multitudinous  voices,  out 
of  hearing  of  each  other,  and  which  nevertheless  respond 
each  to  each,  from  the  Indies  to  the  Thames,  in  recipro- 
cating sounds,  something  wherewithal  to  dismay  the 
intelligence,  to  strike  the  heart  and  spirit  of  man  with 
consternation. 

"  Transporting  was  the  emotion  which  I  myself  ex- 
perienced, when,  for  the  first  time,  I  heard  this  universal 
acclaim.  Unlike  the  skeptic  Montaigne,  who  so  curiously 
ferreted  out  the  customs  of  different  nations  to  detect 
their  moral  discordancies,  1  have  found  a  consentaneous 
harmony  among  them  all.  A  sensible  miracle  has  arisen 
before  me,  —  my  little  existence  of  the  moment  has  seen 
and  touched  the  eternal  communion  of  the  human  race." 

Far  more  striking,  however,  is  the  uniformity,  or  at 
least  agreement  of  the  moral  views,  when  we  observe  the 
daily  intercourse  of  individuals  and  nations.  There  are 
many  exceptions,  undoubtedly,  but  they  attract  more 
attention  because  they  are  exceptions.  That  man  is  a 
social  being,  and  cannot  exist  and  develop  fully  his 
moral  and  intellectual  faculties  in  any  other  state  than 
the  social,  has  been  sufficiently  considered  for  the  present. 
Our  discourse  makes  it  necessary  to  consider  his  individ- 


LECTURE   ON   THE   LAW.  143 

uality  also,  his  separate  and  distinct  existence,  his  inalien- 
able ethic  attributes. 

Superior  intellect,  sympathy,  freedom  of  will,  ration- 
ality, and  conscience  constitute  man's  ethic  character,  his 
moral  dignity,  and  make  us  at  once  conscious  of  the  law, 
"  Do  unto  others  as  you  wish  others  may  do  unto  you." 
This  is  a  fundamental  law,  a  supreme  law  of  practical 
use,  the  law  of  virtue.  It  comes  home  to  a  greater  num- 
ber of  persons  than  any  other  law  that  can  be  devised. 
Christ,  in  his  sermon  on  the  mount,  taught  the  lesson  : 
"  All  things  whatsoever  ye  would  that  men  should  do  to 
you,  do  ye  even  so  to  them :  for  this  is  the  law  and  the 
prophets."  And  Paul  the  Apostle  wrote  to  the  Romans: 
"  When  the  Gentiles,  which  have  not  the  law,  do  by  nature 
the  things  contained  in  the  law,  these,  having  not  the  law, 
are  a  law  unto  themselves  :  which  shew  the  work  of  the  law 
written  in  their  hearts,  their  conscience  also  bearing  wit- 
ness, and  their  thoughts  the  mean  while  accusing  or  else  ex- 
cusing one  another."  Man's  senses,  perceptions,  thoughts, 
emotions,  his  reasoning  and  actions,  are  individually  his 
own.  Man's  responsibility  is  therefore  his  own.  Fault, 
crime,  virtue,  goodness,  or  immorality  is  his  own.  Respon- 
sibility involves  the  idea  that  the  individual  might,  and  if 
he  has  acted  wrong  ought  to  have  acted  differently,  which 
presupposes  free  will  and  individuality.  God  '*  will  ren- 
der to  every  man  according  to  his  deeds."  What  man  is 
in  mind  and  body  first  of  all,  he  is  as  individual,  yet  not 
made  to  be  purely  selfish.  The  Creator  connected  him 
with  his  kind  by  a  thousand  ties,  —  by  sympathy,  love, 
friendship,  and  by  the  mysterious  attachment  growing  out 
of  the  difference  of  sexes. 

We  can  only  reason  from  what  we  know.  Every  sci- 
ence has  to  start  from  some  axioms,  —  truths  universally 
acknowledged  or  self-evident  in  their  nature.  The  most 
elaborate  and  sublime  reasoning's  in  mathematics  are 


144  LECTURE   ON   THE   LAW. 

founded  upon  them.  Natural  law  shows  the  rights  which 
man  has  according'  to  his  inalienable  ethic  nature.  It 
treats  of  his  rights,  and  of  his  obligations  and  duties, 
flowing  from  the  fact  of  each  man  s  being  possessed  of 
the  same  rights.  The  only  axiom  necessary  to  establish 
the  science  of  natural  law  is  this :  "  I  exist  as  a  human 
being;  therefore  I  have  a  right  to  exist  as  a  human 
being."  Spinoza,  never  willing  to  admit  unwarranted 
truths,  remarks:  "Quomodo  autcm  id  sciam  —  .si  royc.s — 
respondebo  —  co  modo,  tic  tit  .sci.s,  tres  angulos  triannuli^ 
ce.qualci*  e.s.se  duobusrectis :  ct  hoc  siijfficere^negdbit  nemo, 
cui  samim  ct  cerebrum,  nee  spiritus  immundos  somniat, 
qui  nobis  ideas  falsas  inspirant  vcris  similes."  (If  you 
ask  how  I  know  this,  I  will  answer.  In  the  same  way 
as  you  know  that  the  three  angles  of  a  triangle  are  equal 
to  two  ri<rht  angles  :  and  no  one  will  deny  this  whose 

o  o  »/ 

brain  is  sound  and  does  not  dream  of  unclean  spirits 
that  inspire  us  with  false  ideas  seemingly  true.) 

Undoubtedly  there  are  certain  laws  of  good  and  evil,  of 
right  and  wrong,  which  man  is  enabled  by  his  moral  sense 
and  his  reason  to  discover,  and  which  are  inseparably 
connected  with  human  happiness.  They  are  the  result  of 
the  natural  feelings,  the  impartial  judgment,  and  the  ex- 
perience of  mankind.  They  are  founded  on  the  paternal 
precept  that  man  should  pursue  his  own  true  and  substan- 
tial happiness.  They  constitute  the  law  of  nature,  which 
treats  of  man's  rights,  and  of  his  obligations  or  duties 
flowing  from  the  fact  of  each  man  being  possessed  of  the 
same  rights,  as  already  stated.  Justinian  reduces  the 
whole  doctrine  of  law  to  these  three  general  precepts, 
honcnte  vivcre,  ciltcni'in  it  on.  ht'do'e,  xmim  cuigne  tribiierc 
(to  live  honestly  and  honorably,  to  wrong  no  one,  to  give 
even  one  his  due). 

Of  the  law  of  nature  Cicero  speaks  with  the  compre- 
hension of  philosophy  and  the  copiousness  of  eloquence. 


LECTURE   ON   THE   LAW.  145 

"  It  is,"  says  he,  "  true  law,  right  reason,  conformable  to 
nature,  diffused  among  all  men,  unchangeable,  eternal. 
It  cannot  be  impaired,  it  cannot  be  altered,  it  cannot  be 
abolished.  The  senate  and  the  people  are  unable  to  dis- 
solve its  obligation.  It  requires  no  interpreter,  no  com- 
mentator. It  is  not  one  law  at  Rome,  another  at  Athens ; 
one  law  now,  another  hereafter.  It  is  the  same,  —  eternal 
and  immutable,  at  all  times  and  for  all  nations  !  The 
precepts  of  moral  and  natm-al  law  are  generally  obliga- 
tory on  man.  But  natural  law  and  revealed  law  operate 
only  upon  the  reason  and  the  conscience,  and  are  insuf- 
ficient to  restrain  the  violence  and  prejudices  of  men  in- 
flamed by  passion,  and  the  tendency  to  a  state  of  conflict 
between  individual  and  individual,  ending  in  a  state  of 
universal  discord  and  confusion,  destructive  of  the  social 
state,  if  not  controlled.  To  establish  public  order,  to  main- 
tain peace,  and  to  execute  justice,  it  becomes  necessary  to 
establish  government  and  laws ;  to  point  out  the  decrees 
of  equity  ;  to  institute  offices  and  other  means  to  punish 
transgressors,  correct  fraud  and  violence ;  and  to  oblige 
men  to  live  peaceably  and  to  respect  the  rights  of  others, 
under  the  pain  and  penalty  to  every  offending  member  of 
the  community  of  having  the  entire  power  of  the  society 
directed  against  him  by  public  authority."  And  that 
law  which  each  people,  or  men  formed  into  a  separate 
society  or  government,  establish  for  themselves  is  called 
civil  law  or  municipal  law.  "  Jus  civile  est  quod  quisque 
sibi  populus  constituent" 

Men  cannot  enjoy  the  protection  of  government  with- 
out submitting  to  the  restraints  which  a  just  government 
imposes.  Laws  are  dead  letters  unless  they  operate  and 
are  enforced  to  oblige  men,  however  reluctant,  to  consult 
their  own  real  and  permanent  interests.  Obedience  be- 
comes a  duty  to  support  the  duty  of  justice :  and  the  ties 
of  equity  must  be  corroborated  by  those  of  allegiance. 
10 


146  LECTURE   ON   THE   LAW. 

The  division  of  law  into  natural  law  and  municipal  law  is 
not  merely  scholastic  and  doctrinal,  but  is  philosophical 
and  based  upon  the  essence  of  things.  The  precepts  of 
natural  law  are  not  in  evei'y  instance  enforced  by  the 
government,  but  the  rules  of  municipal  law  are  expressly 
declared  and  enforced  by  it. 

The  origin  of  governments  has  been  variously  and  fan- 
cifully suggested.  How  they  began,  on  what  principles 
they  were  originally  formed,  what  share  in  their  forma- 
tion should  be  ascribed  to  stratagem,  what  to  convenience, 
what  to  force,  were  said  by  a  learned  statesman  to  be  so 
obscured  by  the  mists  of  time  as  to  be  merely  chimerical. 
But  the  history  of  the  progress  of  government  is  curious 
and  useful.  The  various  stages  through  which  it  passed, 
from  savage  independence,  which  implies  every  man's 
power  of  injuring  his  neighbor,  to  legal  liberty,  which 
consists  in  every  man's  security  against  wrong,  —  the 
manner  in  which  a  family  expands  into  a  tribe,  and  a 
tribe  into  a  nation,  in  which  public  justice  is  gradually 
engrafted  on  private  revenge,  and  temporary  submission 
is  ripened  into  habitual  obedience, — -form  a  most  impor- 
tant and  extensive  object  of  inquiry,  comprehending,  as 
Sir  James  Mackintosh  observes,  all  the  improvements  of 
mankind  in  police,  in  judicature,  and  in  legislation.  As 
civil  governments  were  established,  and  men  became  di- 
vided into  many  great  societies,  and  formed  themselves 
into  separate  states,  commonwealths,  and  nations,  inde- 
pendent of  each  other,  and  yet  liable  to  mutual  inter- 
course, there  naturally  and  necessarily  arose  another  kind 
of  law  to  regulate  their  intercourse,  called  the  law  of 
nations.  Nations  are  equal  in  respect  to  each  other,  and 
entertain  and  claim  equal  consideration  for  their  rights. 
They  acknowledge  no  common  superior.  The  law  of  na- 
tions, therefore,  cannot  be  dictated  by  any  state.  It  de- 
pends upon  the  rules  of  natural  law,  or  upon  compacts. 


LECTURE   ON   THE   LAW.  147 

agreements,  treaties,  and  leagues,  to  be  construed  accord- 
ing to  that  law.  The  same  rules  of  morality  which  hold 
men  together  in  families,  and  form  families  into  states, 
link  together  these  states  as  members  of  the  great  family 
of  mankind.  Nations  as  well  as  private  men  may  be 
injured  or  benefited  by  each  other.  It  is  therefore  their 
interest  as  well  as  their  duty  to  practice  and  enforce 
these  rules  of  justice,  which  control  and  restrain  injury, 
regulate  and  augment  benefit,  and  which,  if  generally 
obeyed,  would  establish  and  maintain  the  well-being  of 
the  universal  commonwealth.  Hence  it  is  that  states  are 
considered  as  moral  persons,  under  the  same  obligations 
mutually  to  practice  honesty  and  humanity  as  would 
have  been  individuals ;  and  hence  the  science  which 
teaches  the  duties  of  states  and  individuals,  and  enforces 
national  and  individual  morality,  has  been  with  propriety 
termed  the  law  of  nature  and  of  nations.  "  Quod  natu- 
ralis  ratio  inter  omnes  homines  constitute^  vocatur  Jus 
gentium"  It  is  received  as  the  code  of  the  great  legis- 
lator of  the  universe  for  the  guidance  of  man  to  happi- 
ness, guarded  and  enforced,  as  experience  has  shown,  by 
the  penal  sanctions  of  shame  and  remorse,  of  infamy  and 
of  misery,  and  still  further  enforced  by  the  dread  of  pen- 
alties in  a  future  state  of  existence. 

The  law  of  nations,  then,  civil  or  municipal  law,  and 
the  law  of  nature,  upon  which  human  laws  are  founded, 
are  embraced  in  the  science  of  law.  Man,  happier  and 
more  content  in  civil  society  than  in  any  kind  of  solitary 
living,  is  not  satisfied  with  this.  We  covet  to  have  a 
kind  of  society  and  fellowship  even  with  all  mankind, 
which  Socrates  signified  when  he  declared  himself  a  citi- 
zen, not  of  this  or  that  commonwealth,  but  of  the  world, 
and  which  is  apparent  in  the  natural  desire  and  delight 
men  have  to  visit  foreign  countries,  to  know  the  customs, 
the  affairs  and  dealings  of  other  people,  and  to  be  in 
league  of  amity  with  them. 


148  LECTURE   ON  THE   LAW. 

Judge  Story  wrote  to  Dr.  Lieber,  in  1837,  that  he  had 
read  with  great  satisfaction  the  manuscript  of  the  second 
book  of  his  work  on  ethics,  entitled  "  The  State,"  which 
he  declared  "  the  fullest  and  most  correct  development  of 
what  constitutes  a  state  that  he  [the  judge]  had  ever 
seen,  and  which  put  the  state  upon  its  true  foundation  :  a 
society  for  the  establishment  and  administration  of  gen- 
eral justice,  justice  to  all,  equal  and  fixed,  recognizing 
individual  rights,  and  not  impairing  them.  The  aims  and 
ends  of  the  work  are  practical." 

This  discourse  now  passes  to  the  consideration  of  the 
state.  Every  man  should  know  his  duty,  and  his  duties 
as  a  citizen  are  among  the  most  important,  especially  in 
countries  which  enjoy  civil  liberty  and  have  a  free  govern- 
ment. The  state  is  so  intimately  connected  with  nearly 
everything  which  concerns  man,  all  our  interests  are  so 
interwoven  with  the  public  weal,  that  it  cannot  prosper  or 
remain  harmless  without  a  faithful  and  correct  discharge 
of  duties  on  the  part  of  every  citizen.  To  be  a  good  citi- 
zen one  must  be  a  good  man,  and  should  entertain  sound 
principles  of  public  morality.  This  knowledge  and  these 
principles  can  be  durably  and  with  certain  effect  im- 
pressed in  our  youth. 

The  state  and  politics  disclaim  immorality.  Rare  ex- 
ceptions indeed  exist,  but  in  them  is  always  found  a 
desire  to  gloss  them  over  with  the  appearance  of  justice. 
Marat  and  Robespierre,  Reubel  and  St.  Just,  had  the 
name  of  virtue  always  on  their  lips.  Witness,  for  in- 
stance, the  massacre  of  St.  Bartholomew,  August  "24, 
1572,  "  one  of  the  most  atrocious  crimes  recorded  in 
history."  When  the  massacre  had  been  perpetrated  with 
unexampled  treachery,  cruelty,  and  disgusting  vice  and 
villainy  by  Catherine  de  Medici  and  Charles  IX.,  the  king, 
after  a  long  and  cold-blooded  consultation  between  him,  his 
wicked  mother,  and  Anjou  as  to  the  invention  of  the  best 


LECTURE   ON  THE  LAW.  149 

means  of  justifying  themselves,  proceeded  on  August  26 
to  Parliament,  and  there  added  to  this  stupendous  wrong 
the  solemn  lie,  after  having  heard  high  mass,  that  all 
had  been  done  to  save  themselves  from  a  vast  yet  timely 
discovered  conspiracy  of  the  Huguenots.  Their  bodies 
were  weltering  in  blood,  and  could  not  gainsay  the  false- 
hood. But  on  August  24,  the  day  of  the  carnage  itself, 
the  king  and  queen  sent  a  declaration  into  all  the  prov- 
inces that  the  whole  had  been  done  by  the  Guises ;  nay, 
though  Philip  II.  of  Spain  celebrated  this  event  by  the 
performance  of  a  drama  representing  the  triumph  of  the 
Church  Militant,  and  Pope  Gregory  XIII.  ordered  a 
solemn  Te  Deum  to  be  performed  in  the  church  of  St. 
Louis,  Charles  IX.,  or  his  wily  mother,  found  it  neces- 
sary to  order,  even  two  months  after  the  bloody  deed,  the 
torturing  and  execution  of  an  old  nobleman,  Briguemant, 
and  one  of  the  royal  counselors,  Cavannes,  as  having 
been  accessories,  so  that  the  appearance  of  truth  as  to  a 
Huguenot  conspiracy  might  be  kept  up.1 

It  is  the  destiny,  the  glorious  destiny  of  man  to  be 
always  progressive ;  so  it  is  his  duty  to  press  on  towards 
things  before  him.  In  the  order  of  Providence,  the  prog- 
ress of  society  towards  protection  resembles  that  of  an 
individual.  Hitherto  it  hath  been  slow,  and  has  often 
been  interrupted  by  unpropitious  events  ;  but  there  have 
been,  and  there  always  are,  some  steps  gained  which  are 
never  lost.  No  man  can  look  back  on  the  history  of 
modern  civilization  without  seeing  that  it  presents  the 
phenomena  of  development  and  growth.  Whatever  may 
be  the  decline  of  particular  communities,  the  progress  of 
mankind  on  the  whole  is  a  progress  to  higher  and  better 
things.  Man's  conduct  will  in  the  main  be  guided  by  his 
moral  and  intellectual  convictions. 

1  Lieber,  Political  Ethics. 


150  LECTURE   ON   THE   LAW. 

Civilization  cannot  be  conceived  of  without  society ; 
that  is,  without  men  congregated  in  large  masses,  and 
closely  united  by  a  variety  of  important  relations  and 
strongly  affecting  each  other's  welfare.  Without  society, 
no  fellow-feeling  and  sympathy,  no  intellectual  progress 
from  generation  to  generation,  no  common  stock  of  sci- 
ence and  moral  experience,  no  fine  arts,  no  expanded  idea 
of  justice  and  mutual  rights,  no  public  spirit  with  its 
elevating  qualities,  no  division  of  labor,  no  extensive  ex- 
change of  produce,  no  works  to  benefit  the  many,  —  with- 
out society,  no  humanity  in  man  ! 

Civilization,  then,  is  man's  truly  natural  state,  adapted 
to  and  affected  by  his  nature.  Hooker,  carefully  observ- 
ing and  sagacious,  said  :  "  Men.  if  we  view  them  in  their 
spring,  are  at  the  first  without  understanding  or  know- 
ledge at  all.  Nevertheless,  from  this  utter  vacuity  they 
grow  by  degrees,  till  at  length  they  become  even  as  the 
angels  themselves  are.  Man  was  essentially  made  for 
progressive  civilization,  and  this,  therefore,  is  his  natural 
state."  A  tree  in  blossom  or  with  the  ripe  fruit  is  in  no 
less  a  natural  state  than  in  winter  deprived  of  all  foliage  ; 
nor  is  the  plant  in  an  unnatural  state  when  in  the  germ. 

Men,  at  a  very  early  time,  were  led  to  imagine  a  period 
when  plenty  rendered  labor  unnecessary,  and  universal 
content  prevented  contest  and  clashing  of  interest,  —  a 
golden  age  of  happiness,  a  dream  which  gave  to  the  fancy 
at  least  that  for  which  the  heart  yearned  and  to  which 
reality  offered  a  decided  contrast.  Man  is  destined  by 
nature  to  labor,  to  gain  by  exertion,  to  conquer  all  that  is 
necessary  for  him.  There  is  no  u  ready-made  happiness," 
not  even  comfort  for  him.  Instead  of  the  many  physical 
specific  instincts  with  which  the  brute  creation  has  been 
endowed  he  has  received  superior  intellect  ;  but  this  intel- 
lect itself  has  first  to  be  developed  gradually  from  gen- 
eration to  ffeneration. 


LECTURE   ON   THE   LAW.  151 

We  are  told  the  golden  dream  of  original  happiness 
was  coupled  with  another  equally  erroneous  view.  Rous- 
seau, in  the  opening  sentences  of  "  Emile,"  his  work  on 
education,  says :  "  All  is  good  as  it  comes  out  of  the 
hands  of  the  Author  of  things  ;  everything  degenerates  in 
the  hands  of  man,  who  wishes  nothing  to  be  such  as  nature 
has  made  it,  not  even  man." 

This  erroneous  view  has  been  fully  exposed  and  its 
error  pointed  out  by  philosophic  writers,  by  no  one  more 
satisfactorily  than  by  Dr.  Lieber.  It  is  man  who  im- 
proves upon  unaided  nature  everywhere ;  makes  the  soil 
bear  hundred  fold,  enlarges  the  fruits,  ennobles  the 
stock,  saves  from  destruction,  unites  what  was  severed, 
carries  the  blessings  and  pleasures  of  one  climate  to 
another,  and  renders  palatable  what  was  repulsive,  harm- 
less what  was  poisonous,  etc. 

What  is,  philosophically  speaking,  the  true  state  of 
nature  of  any  being  or  thing?  Doubtless  that  in  which 
it  fulfills  most  completely  that  end  and  object  for  which 
it  is  made,  according  to  its  organization.  This  discourse 
has  clearly  shown  that  "  man  was  essentially  made  for 
progressive  civilization,  and  this  therefore  is  his  natural 
state." 

Law,  we  have  seen,  is  a  rule  of  action.  The  world  was 
not  made  for  the  indolent ;  the  active  rule.  We  have  to 
work,  to  labor,  to  learn  honestly  and  gather  industriously, 
that  we  may  learn  to  do  right.  We  must  not  minister  to 
one  of  the  worst  dispositions  by  telling  the  idle  that  they 
have  to  learn  nothing,  that  the  cultivation  of  the  mind  is 
useless,  that  common  sense  is  sufficient  for  everything. 

Man's  ethic  character  is  founded  on  his  individuality 
and  sociality.  He  is  first  and  essentially  individual ;  his 
acts  are  his  own,  his  responsibility  is  his  own  ;  for  his 
reasoning  and  acting  are  his  own  ;  he  has  an  inalienably 


152  LECTURE  ON   THE   LAW. 

moral  character,  and  cannot,  by  his  own  consent  or  the 
force  of  others,  become  a  non-moral  being.  He  has  a 
natural  aversion  to  being  absorbed  in  an  undefined 
generality,  and  each  man  is  anxious  to  be  a  distinct 
individual.  But  he  cannot  be  and  never  was  without 
property,  which  is  nothing  else  than  the  application  of 
man's  individuality  to  external  things,  effecting  a  rela- 
tion, a  relation  between  man  and  things  without  him, 
involving  a  power  over  them,  of  disposing  of  them,  grow- 
ing out  of  the  very  nature  of  man  ;  and  consequently  we 
find  him  at  no  stage  without  property. 

Kent  says,  the  sense  of  property  is  graciously  bestowed 
upon  mankind  for  the  purpose  of  rousing  from  sloth  and 
stimulating  them  to  action.  It  leads  to  the  cultivation 
of  the  earth,  the  institution  of  government,  the  establish- 
ment of  justice,  the  acquisition  of  the  comforts  of  life,  the 
growth  of  the  useful  arts,  the  spirit  of  commerce,  the  pro- 
ductions of  taste,  the  erections  of  charity,  and  the  display 
of  the  benevolent  affections. 

Whatever  is  absolutely  necessary  for  man's  existence, 
physical  or  intellectual,  Providence  has  accompanied  with 
pleasure.  It  is  a  pleasure  to  eat  when  hungry,  to  drink 
when  thirsty,  to  sleep  when  tired,  to  awake  after  a  long 
sleep,  to  love  and  care  for  one's  children,  to  commune 
with  others  after  a  long,  long  solitude.  It  is  a  pleasure 
to  meditate,  to  analyze,  to  produce,  to  work  with  effect, 
to  assist  others,  to  accumulate  property. 

In  considering  the  nature  and  character  of  man,  our 
discourse  has  viewed  his  individuality,  his  distinct  exist- 
ence, and  his  sociality,  the  necessity  imposed  upon  him  to 
associate. 

The  protracted  state  of  the  child's  dependence  upon 
the  parents  produces  habits  of  obedience,  respect,  and 
love  tor  a  more  advanced  period,  a  consciousness  of  mutual 
dependence.  The  members  of  a  family  soon  discover  how 


LECTURE   ON  THE   LAW.  153 

much  benefit  they  derive  from  reciprocal  assistance  and 
from  a  division  of  occupation  among  them.  Men  were 
induced  to  live  in  society,  and,  in  a  social  state,  were  led 
to  further  improvement  and  gradual  progress  to  civili- 
zation. With  every  progress  in  society  and  civilization 
the  family  continues  and  increases  its  importance  and 
value.  It  is  in  the  family,  between  parents  and  children 
and  brothers  and  sisters,  that  those  strong  sympathies  and 
deep-rooted  affections  grow  up,  which  become  the  vital 
spark  of  so  many  good  actions,  which  are  the  medium 
through  which  we  view  other  and  vaster  spheres  with 
purer  and  intenser  feelings,  and  which  survive  blasts  of 
later  life  that  would  chill  most  hearts  into  cold  egotism. 
With  them  is  mingled,  and  a  thousand  fold  entwined,  all 
that  attachment  which  expands  into  patriotism ;  that 
warm  devotion  to  our  country  which  dwells  in  every  noble 
heart,  and  without  which  no  free  state  can  long  exist. 
To  "  fight  for  our  hearths,  for  our  country,"  goes  through 
all  countries  and  centuries,  and  appeals  to  every  soul. 
"  Cari  simt  parentes,  carl  liberi,  carl  propinqui,  cari 
familiarc'S ;  omnes  omnium  caritates  patria  una  com- 
plexa  est ;  pro  qua  quis  bonus  dubitet  mortem  appetere, 
si  ei  sitprofiturus"  (Dear  to  us,  beloved,  are  our  parents, 
children,  friends,  and  intimate  associates  ;  but  the  love  of 
our  country  embraces  all  other  loves  whatsoever,  for  which 
no  good  man  would  hesitate  to  sacrifice  his  life,  if  by  his 
death  he  could  render  it  any  necessary  service.) 

The  mutual  attachment  between  members  of  the  family, 
depending  on  personal  relations,  first  induced  by  ties  of 
consanguinity,  on  kindness  and  forbearance,  on  a  degree 
of  disregard  of  one's  own  personal  considerations,  that 
which  renders  the  family  so  admirable,  is  love  and  con- 
tinued forgetfulness  of  a  separate  individual  interest. 

The  relation  between  man  and  man,  leading  to  further 
consideration,  naturally  conducts  us  to  the  relation  be- 


154  LECTURE   ON   THE   LAW. 

tween  man  and  things  without  him,  to  which  allusion  was 
made  in  Kent's  remark  on  the  idea  or  sense  of  property. 
We  have  seen  that  labor  must  be  divided  :  that  men  stand 
in  constant  need  of  each  other  ;  that  this  division  does  not 
prevent  men  from  associating  for  a  common  purpose,  but 
carries  with  it  what  is  indispensably  connected  with  it, 
union  of  labor  or  association  of  energy,  leading  to  and  in 
fact  constituting  exchange,  a  peculiar  and  characteristic 
tie  of  man.  Lieber  declares  that  there  exists,  as  far  as 
he  knows,  no  solitary  instance  of  exchange  among  ani- 
mals, no  case  of  any  exchange  of  labor  or  produce,  of 
which  a  certain  degree  exists  among  all  men,  the  lowest 
Hottentot  or  the  most  barbarous  South  Sea  islander  not 
excepted.  There  is  no  human  tribe  known  which  has 
not  risen  to  this  incipient  state  of  all  civilization.  Even 
the  most  brutish  Pelew  Islander  willingly  parts  with  the 
fish  which  he  has  caught  for  a  bar  of  iron.  So  common 
an  act  of  man  is  the  exchange  of  articles  and  of  labor. 

Beside  consanguinity  and  exchange,  there  exist  between 
man  and  man  the  relation  of  social  intercourse  and  intel- 
lectual relations,  embracing  ties  which  grow  out  of  the 
constant  exchange  of  thoughts,  feelings,  taste,  common 
literature,  arts,  sciences,  and  national  custom,  and  the 
relation  of  right,  upon  which  the  state  is  founded. 

What  is  right  ? 

Man  has  been  shown  to  be  a  moral  individual,  yet 
bound  to  live  in  society.  He  is  a  being  with  free  agency, 
freedom  of  action  ;  but  as  all  his  fellow-men  with  whom 
he  lives  in  contact  are  equally  beings  with  free  agency, 
each  making  the  same  claim  of  freedom  of  action,  there 
results  from  it  the  law  that  the  use  of  freedom  by  one 
rational  being  must  not  contradict  or  counteract  the  use 
of  liberty  by  another  rational  being.  This  demand  of 
what  is  just,  made  by  each  upon  each,  is  the  relation  of 
ritrht. 


LECTURE   ON  THE   LAW.  155 

Right,  then,  being  that  which  I  claim  as  just,  because 
necessary  to  me  as  man,  and  granted  by  me  to  others,  is 
the  condition  of  union,  that  by  which  man's  individuality 
and  personality  and  his  sociality  can  coexist.  It  applies 
to  the  society  of  comity  as  well  as  to  the  state. 

What  then  in  particular  are  the  rights  on  which  the 
state  is  built?  A  state  is  a  society  of  individuals  united 
for  a  common  purpose,  and  having  common  interests; 
thus  the  inhabitants  of  a  state  constitute  a  society.  In 
a  more  enlarged  sense,  the  whole  family  of  man  is  the 
human  society. 

The  state  is  founded  on  those  rights  which  are  essen- 
tial to  all  members  and  which  can  be  enforced.  It  is  then 
that  society  which  has  to  protect  the  free  action  of  every 
one,  as  its  first  basis ;  and  as  other  relations  between  man 
and  man  imply  action,  each  of  these  becomes  likewise  a 
relation  of  right,  either  claiming  to  be  enforced  or  to  be 
protected  against  infringement.  The  state  speaks  through 
laws,  laws  which  command  and  must  be  obeyed.  The 
idea  of  the  just,  and  the  action  founded  upon  this  idea, 
called  justice,  form  the  foundation  and  great  object  of 
the  state.  "Quid  enim  est  civitas,  nisi  juris  societas?" 

The  state  is  called  a  "jural  society,"  denoting  that  it 
has  reference  to  the  doctrine  of  rights  and  obligations. 
The  individual  demands  of  the  state  that  his  right,  his 
jural  relation  to  others,  be  maintained  inviolate,  and  the 
state  demands  that  the  individual  shall  not  interfere  with 
the  right  of  others  ;  in  other  words,  shall  not  disturb  their 
jural  relations.  The  individual  being  unable  to  obtain 
the  ends  for  which  he  was  made,  in  a  state  of  insulation, 
but  bound  from  his  very  nature  to  live  in  society, 
it  is  matter  of  right  that  he  obtain  through  and  con- 
jointly with  society  what  he  cannot  obtain  singly,  and 
what  nevertheless  is  essential  to  his  well-being  as  man. 
The  state,  therefore,  has  the  right  and  the  duty  to  obtain 


156  LECTURE   ON   THE   LAW. 

all  these  ends  by  the  combined  energy  of  society  for  each 
individual,  and  has  a  moral  character  and  must  main- 
tain it. 

It  is  thus  seen  that  protection  is  the  aim  and  object  of 
the  state,  and  is  but  another  word  for  justice,  and  in- 
cludes: (1)  individual  security ;  (2)  social  security,  the 
protection  of  society  as  such  ;  (3)  the  protection  of  each 
member  as  a  being  who  cannot  obtain  otherwise  his  great 
ends  of  humanity.  "  Salus  populi  supremo,  lex."  The 
state  exists  to  procure  or  maintain  th^  weal,  welfare,  hap- 
piness, and  prosperity  of  the  people,  and  affords  a  means 
to  each  individual  to  be  truly  man,  all  that  he  ought  to 
be.  It  is  a  form  and  faculty  to  lead  mankind  toward 
perfection  ;  it  is  the  glory  of  man. 

The  state  speaks  through  laws,  and  laws  must  be 
obeyed.  The  state  exists  by  necessity,  as  effect  and 
consequence  of  our  physical  and  intellectual  nature.  The 
right  of  society  to  legislate  —  that  is,  the  right  existing 
somewhere  of  prescribing  general  and  imperative  rules  — 
has,  it  is  believed,  never  been  doubted,  any  more  than  the 
right  of  breathing  in  the  individual  ;  both  flow  from  the 
same  source,  necessity,  according  to  our  nature.  They 
are  conditions  of  our  existence  as  human  beings.  We 
might  live  as  brutes,  without  the  institution  of  the  state; 
but,  for  our  existence  as  human  beings,  the  state  is  an 
absolute  condition,  a  condition  nine  qua  non ;  and  this 
absolute  necessity  constitutes  the  ground  on  which  is 
founded  what  is  called  sovereignty,  —  that  is,  the  self-suffi- 
cient power  which  derives  its  vital  energy  from  no  other, 
is  founded  by  no  superior  authority,  but  imparts  it  and 
extends  over  everything  that  is  requisite  in  order  to  ob- 
tain the  object  of  the  state,  which  man  has  to  obtain  in 
ami  by  society,  in  as  far  as  it  is  founded  on  jural  rela- 
tions ;  that  is,  011  right,  on  terms  of  justice  or  mutual 
obligations. 


LECTURE   ON   THE   LAW.  157 

The  character  of  the  state  becomes  more  powerful  with 
every  advanced  stage  of  civilization.  Its  members  do  not 
stand  as  mere  individuals,  brought  together  for  the  sole 
purpose  of  protecting  one  another  from  bodily  harm,  or 
for  any  selfish  and  temporary  purpose.  There  are  yet 
more  important  objects  to  be  obtained  in  the  course  of 
civilization.  Ignorance  and  barbarity,  for  instance,  are 
likewise  to  be  warded  off,  because  if  not  they  will  pro- 
duce insecurity,  and  because  knowledge  and  education  are 
necessary  for  man's  civilization,  and  must  be  obtained  by 
society  jointly  if  they  cannot  be  obtained  by  individual 
energy  or  voluntary  association. 

This  leads  to  the  following,  perhaps  a  more  formal 
statement :  "  The  state,  according  to  its  jural  relations, 
has  for  its  legitimate  objects  all  those  things  necessary 
or  highly  important  for  man,  which  he  nevertheless 
(1)  cannot  obtain  singly,  (2)  ought  not  to  obtain  singly 
(because  he  exposes  himself  or  his  fellow-citizens  to  great 
danger  by  doing  so  ;  for  instance,  by  redressing  privately 
interferences  with  his  rights),  and  (3)  will  not  do  singly 
(because  burthensome,  disagreeable  ;  for  example,  to  keep 
roads  in  good  order,  establish  common  schools,  pay  what 
we  owe)." 

The  state  and  the  individual  stand  in  jural  relations  to 
each  other ;  reciprocity  exists  between  them,  and  right, 
all  right  is,  in  its  very  meaning,  founded  on  reciprocity. 
The  moment  that  any  particular  state  is  actually  to  treat 
me  as  merely  existing  for  it,  demanding  only,  and  giving 
nothing,  or  demanding  without  giving  the  equivalent,  the 
bond  is  dissolved,  and  the  state  does  not  any  longer  exist 
for  me,  —  it  is  not  my  state. 

Rights  imply  that  he  who  has  them  can  insist  upon 
them  ;  he  ought  to  have  the  power  to  preserve  and  enforce. 
His  jural  relations  to  the  state  —  obligations,  rights,  and 
penalties  —  must  be  judged  of  by  laws  :  they  cannot  de- 


158  LECTURE   ON   THE   LAW. 

pend  upon  personal  views  and  feelings  and  affections,  and 
lie  in  the  indefinite  in  the  breast  of  some  one.  Each  mem- 
ber of  a  state  has  a  right  to  be  judged  by  laws  through 
the  courts.  Frederick  the  Great,  who  was  very  anxious 
to  remove  a  windmill  close  before  the  "  centre  window  of 
his  favorite  palace  at  Potsdam,"  could  not  induce  the 
miller  to  sell  it.  The  king,  irritated,  threatened  the 
owner  to  force  him  to  consent.  "  There  is  a  supreme 
court  in  Berlin,"  answered  the  miller.  The  king  was 
silent,  and  the  mill  stands  to  this  day,  an  annoyance  to 
the  palace,  but  one  of  the  best  monuments  which  an  abso- 
lute monarch  ever  erected  to  himself,  as  an  ambassador 
wrote  home  from  Potsdam. 

The  rights  of  persons  in  private  life  are  either  absolute 
or  relative.  The  absolute  rights  may  be  resolved  into 
the  right  of  personal  security,  the  right  of  personal  lib- 
erty, and  the  right  to  acquire  and  enjoy  property.  These 
rights  are  natural,  inherent,  and  inalienable,  primordial. 
The  state,  therefore,  cannot  take  the  life  of  the  individual 
for  the  benefit  of  others,  because  that  would  violate  the 
first  of  his  rights,  the  right  of  living,  without  being  able 
to  give  him  an  equivalent,  unless  the  state  have  acquired 
a  right  over  his  life  on  the  specific  ground  of  his  having 
forfeited  it.  There  can  be  no  doubt  as  to  the  right  in 
the  state  to  punish  capitally  for  certain  crimes. 

Closely  connected  with  the  right  of  living  and  essential 
to  personal  security  is  the  claim  of  protection  for  the 
body,  limbs,  and  health.  Many  considerations  of  high 
importance  must  give  way  if  clashing  with  sanitary  inter- 
ests, the  life  and  health  of  members  of  the  community  ; 
every  other  right  is  to  give  way  if  under  absolute  neces- 
sity to  save  one's  own  life.  " Hccessitas  nun  habet  leyem, 
ju.x  nvcexsitatis."  (Necessity  does  not  establish  a  right, 
but  annihilates  responsibility.) 

The  United    States  of  America,  in  their  Declaration  of 


LECTURE   ON  THE   LAW.  159 

Independence,  set  forth  as  self-evident  truths  the  rights 
of  individual  man,  by  the  laws  of  nature  and  of  nature's 
God,  to  life,  to  liberty,  to  the  pursuit  of  happiness ;  that 
all  men  are  created  equal ;  that  governments  are  insti- 
tuted among  men  to  secure  these  rights,  and  derive  their 
just  powers  from  the  consent  of  the  governed. 

Assuming  this,  there  is  no  theoretical  difficulty  respect- 
ing the  subjects  which  require  the  action  of  the  state  or 
not,  and  those  which  the  state  ought  never  to  touch.  But 
in  practice  there  is  much  difficulty. 

Life  is  absolutely  necessary  for  man,  and  if  he  cannot 
possibly  obtain  medical  assistance  society  is  bound  to 
furnish  it.  Public  hospitals  are  not  a  mere  matter  of 
charity ;  they  are  a  matter  of  right.  That  they  may  be 
abused,  and  easily  abused,  we  know. 

Again,  if  society  be  convinced  that  institutions  of  deep 
learning,  universities,  are  of  absorbing  importance  to  so- 
ciety, because  science  must  always  be  far  in  advance  of 
practice,  and  because  the  cultivation  of  the  sciences  for 
their  own  sake,  and  not  with  a  confined  view  of  immedi- 
ate practical  application,  raises  the  standard  of  knowledge 
in  general,  and  is  a  great  blessing  to  a  community ;  and  if 
the  state  be  convinced  that  private  means  must  ever  be 
insufficient  for  the  erection  of  a  university,  and  the  col- 
lection of  large  libraries,  museums,  etc.,  then  the  state 
has  the  same  right  and  the  same  obligation  to  found 
and  aid  such  institutions  as  it  has  to  aid  in  the  founda- 
tion of  common  schools  or  courts,  hospitals  or  armies. 
So  it  hath  been  held.  If  the  Greeks  thought  that  the 
development  of  "  taste "  was  essential  to  the  whole  de- 
velopment of  man,  and  that  individual  means  were  insuf- 
ficient to  effect  the  necessary  cultivation  of  the  fine  arts, 
the  state  was  right  in  promoting  them  by  public  means. 

Personal  liberty  is  a  condition  of  man's  free  agency 
as  a  member  of  society  ;  as  a  being  who  has  to  obtain 


160  LECTURE   ON  THE   LAW. 

certain  objects  in  society  with  others,  he  must  be  person- 
ally free.  There  is  no  right  more  essential  to  him  than 
the  right  of  property  and  the  means  wherewith  he  acquires 
it ;  that  is,  labor,  skill,  and  exchange.  It  is  his  duty  to 
maintain  himself  and  his  family  ;  he  has  a  fair  share  in 
the  means  of  support  offered  by  nature  and  the  various 
ways  of  acquisition  belonging  to  his  nature.  lie  has  a 
primordial  right  to  use  his  labor  as  he  chooses,  if  he  do 
not  thereby  transgress  the  right  of  others,  and  the  state 
must  neither  disturb  him  in  this  lawful  pursuit  nor  allow 
others  to  disturb  him.  Exchange  is  one  of  the  most 
necessary  and  natural  means  of  acquisition,  founded  in 
the  variety  of  soil,  clime,  genius  of  people,  agents  of  na- 
ture, etc.,  and  one  of  the  most  effective  means  of  civili- 
zation, as  already  stated.  It  lies  in  the  great  order  of 
things. 

The  sense  of  property  is  inherent  in  the  human  breast. 
Man  was  fitted  and  intended  by  the  Author  of  his  being 
for  society  and  government,  and  for  the  acquisition  and 
enjoyment  of  property.  This  is  the  law  of  his  nature. 

No  ri"'ht  calls  for  more  modification  and  regulation  by 

o  o  */ 

the  state  than  that  of  acquisition  of  property  ;  it  relates 
more  than  any  other  right  to  the  material  world,  and  more 
affects  in  its  enjoyment  the  jural  relations  of  others. 
The  legislation,  therefore,  of  every  country  has  necessarily 
acted  upon  the  subject.  Xor  has  property  been  consid- 
ered a  right  which  could  on  no  consideration  be  abolished 
or  remodeled.  Other  means  of  acquisition  than  by  labor, 
though  not  absolutely  furnished  by  nature,  have  been 
found  excellent  for  the  welfare  of  society,  entirely  de- 
pendent on  legislation  :  for  instance,  the  law  of  inherit- 
ance. 

Everything  in  the  state  must  be  founded  on  justice, 
and  justice  rests  on  generality  and  equality.  The  state, 
therefore,  has  no  right  to  promote  the  interest  of  one  and 


LECTURE   ON   THE   LAW.  161 

not  of  the  other.  It  promotes  my  interest  if  it  assists  in 
getting  my  debts  paid,  but  it  is  ready  to  do  so  for  every- 
body. It  promotes  private  interest  if  it  gives  a  pension  to 
the  widow  of  a  soldier,  but  it  is  on  the  ground  that  so- 
ciety owes  her  a  debt,  or  that  it  is  good  for  society  thus 
to  encourage  soldiers.  So  if  a  state  gives  money  to  a 
traveler  into  distant  regions,  or  to  study  the  fine  and 
useful  arts  and  usages  in  foreign  cities  and  lands,  it  gives 
it  because  the  public  is  believed  to  benefit  by  it,  directly 
or  indirectly  ;  but  the  money  is  not  given  to  the  private 
individual  as  such.  Public  gifts  of  this  nature,  pensions 
and  the  like,  have  frequently  been  bestowed  in  a  shame- 
less manner,  under  a  pretense  of  rewarding  services  for 
some  public  good.  Witness  Somerset  and  Buckingham. 

It  is  not  easy  to  decide  what  is  of  sufficient  general  im- 
portance to  call  for  public  action.  The  general  principle 
is,  interfere  as  little  as  possible  with  the  private  affairs 
of  the  individual. 

The  intermeddling  of  the  state  with  private  affairs 
frequently  springs  from  other  motives  than  a  wish  to 
serve  the  affairs  of  those  intermeddled  with.  Individu- 
als and  private  associations  should  be  left  to  private  exer- 
cise of  their  industry  as  much  as  the  public  weal,  comfort, 
and  morality  will  allow  :  but  the  state,  through  its  public 
authorities,  has  frequently  means  of  obtaining  more  correct 
and  wider  views,  fuller  and  more  detailed  knowledge,  in 
short,  official  information,  unattainable  by  the  individual, 
and  can  command  the  aid  of  better  qualified  persons  ;  so 
that  interference  becomes  just,  because  demanded  by  pub- 
lic interest.  Lieber,  after  this  statement,  says  :  "  I  do 
not  know  that  what  is  lawful  for  the  state  to  do,  and  how 
it  ought  to  be  done,  has  ever  been  more  lucidly  expressed 
than  in  the  following  passage:  '  Erit  lex  honesta,  justa, 
possibilis,  secundum  naturam,  secundum  consuetudinem 
patruti,  loco  temporique  conveniens,  nccessaria,  utilis, 
11 


1C2  LECTURE   ON   THE   LAW. 

manifesto,  quoqi/c,  »c  aliquid  per  obscuritatem  in  capti- 
one  contincat,  mdlo  private  commode),  sed  pro  communi 
'titilitatr  civiiim 


Man  cannot  be  man  without  communion,  utterance,  be 
this  by  sound  or  sign,  and  be  this  sign  transitory  (as  the 
sign  made  by  the  deaf  and  dumb)  or  enduring  (by  writ- 
ing) ;  our  whole  existence  as  human  beings  depends  upon 
it.  We  cannot  imagine  a  human  society  consisting  of 
beings  deaf,  dumb,  and  blind. 

Mankind  could  never  have  advanced  had  not  members 
of  the  existing  generations  held  free  converse  among 
themselves,  and  had  not,  in  the  course  of  time,  one 
generation  learned  to  commune  with  the  next,  or  people 
separated  by  space  to  exchange  their  ideas.  The  more 
the  earth  became  peopled,  the  more  the  stage  of  action, 
knowledge,  and  intercourse  became  extended  ;  and  the 
more  the  collection  of  facts  and  reasoning  required 
communications  too  extensive  for  mere  oral  converse,  the 
more  writing  became  necessary,  and  the  knowledge  of 
what  has  been  written  became  indispensable.  Writing  is 
nothing  but  utterance  and  converse.  Without  it,  man 
would  never  have  shaken  off  the  thralldom  of  distort- 
ing tradition  :  knowledge  could  not  have  accumulated 
in  any  high  degree  ;  it  could  not  have  descended  by  way 
of  inheritance  from  one  to  the  other.  Interference  with 
writing  is,  therefore,  interfering  with  thought.  No  au- 
thority, man,  or  body  lias  a  right  to  disturb  a  man's  com- 
munion with  his  fellow-men  by  whatever  means  of  utter- 
ance he  chooses,  if  no  right  of  others  is  infringed. 

.But  though  the  right  of  utterance  is  primordial,  indis- 
putable, it  yet  may  be  regulated  or  suspended.  Military 
circumstances  may  justify  or  give  a  right  to  a  commander 
of  troops  to  declare  that  a  single  word  uttered  should  be 
instantly  punished  with  death.  It  is  done  not  unfrequently. 


LECTURE   ON   THE   LAW.  163 

The  Dutch  Colonel  Haraugiere,  in  1590,  hid  himself 
with  his  seventy  men  on  board  the  peat  vessel,  to  be 
dragged  into  the  fortress  of  Breda,  occupied  by  the 
Spaniards,  and  exercised  the  right  to  make  the  order. 
The  same  order,  it  is  said,  was  given  by  General  Wayne 
when  he  inarched  to  capture  Stony  Point  in  1779.  So 
may  utterance  by  writing  be  suspended  or  limited.  But 
these  are  exceptions. 

Nothing  is  more  certain  than  that  we  are  not  intended 
solely  for  ourselves.  Our  happiness,  nay,  our  whole  ex- 
istence as  human  beings,  as  already  stated,  depends  upon 
communion,  converse,  social  intercourse. 

Cicero,  who  knew  so  well  how  to  illustrate  law  by 
philosophy,  says  :  "•  If  we  could  suppose  ourselves  trans- 
ported by  some  divinity  into  a  solitude  replete  with  all 
the  delicacies  which  the  heart  of  man  could  desire,  but 
excluded  at  the  same  time  from  every  possible  inter- 
course with  our  kind,  there  is  not  a  person  in  the  world 
of  so  unsocial  and  savage  a  temper  as  to  be  capable,  in 
those  forlorn  circumstances,  of  any  enjoyment."  Nothing, 
he  continues,  is  more  true  than  what  the  philosopher 
Archytas  is  reported  to  have  said.  If  a  man  were  to 
be  carried  up  into  heaven  and  see  the  beauties  of  uni- 
versal nature  displayed  before  him,  he  would  receive  but 
little  pleasure  from  the  wonderful  scenes,  unless  there 
were  some  person  to  whom  he  could  relate  the  glories 
which  he  had  viewed.  Man,  like  those  plants  which  are 
formed  to  embrace  others,  is  led  by  an  instinctive  impulse 
to  recline  on  those  of  his  own  kind.  Pope,  our  philo- 
sophic poet,  thus  briefly  says  :  — 

"  Man,  like  the  gen'rous  vine,  supported  lives  ; 
The  strength  he  gains  is  from  the  embrace  he  gives." 

Man,  the  individual,  has  the  right  to  move  where  he 
pleases.  The  right  of  personal  liberty,  as  well  as  of  ex- 
change, would  already  sufficiently  warrant  this  right,  the 


164  LECTURE   ON   THE   LAW. 

right  of  emigration,  of  expatriation.  "  Next  to  my  life 
is  the  place  where  I  live,  where  I  exchange  my  labor,  — 
the  most  important  to  me  of  all  my  rights  which  touch 
the  physical  world."  Special  circumstances  may  limit 
this  right,  as  that  of  utterance,  but  it  can  only  be  by  way 
of  exception,  notwithstanding  all  that  has  been  said  to  the 
contrary  on  the  ground  of  natural  allegiance.  It  must 
be  one  of  the  first  of  all  rights  of  a  free  being  to  choose 
that  place  and  that  society  where  he  thinks  he  may  best 
obtain  his  individual  objects. 

Man,  it  is  repeated,  has  far  nobler  objects  than  merely 
good  living ;  before  all,  he  must  obtain  the  common  com- 
forts of  life  for  himself  and  family,  as  the  basis  of  higher 
things.  If  over-population  or  over-taxation  grind  down  a 
man  so  that  he  can  hardly  obtain  food  for  his  family, 
still  less  elevate  them  morally  and  intellectually,  and  he 
has  an  opportunity  to  remove  to  an  unoccupied  virgin  soil, 
which,  like  a  kindly  friend,  renders  readily  to  every  ex- 
ertion with  ungrudging  abundance  ;  should  such  a  man 
linger  out  a  life  of  wretchedness  and  bring  up  his  chil- 
dren in  sloth  and  ignorance,  —  that  is,  prepare  and  tit 
them  for  vice,  perhaps  for  crime,  —  merely  because  some 
suppose  it  unpoetical  to  leave  the  native  soil  for  a  better 
one,  and  to  toil  hard  to  become  independent,  a  worthy, 
noble  object  to  every  man  ?  "  There  is  poetry  in  the 
emigrant  who  goes,  with  nothing  but  a  willing  arm  and 
his  plough,  a  conqueror,  to  the  West." 

It  is  the  order  of  things  to  emigrate.  No  nation  was 
more  given  to  emigration  than  the  ancient  Greeks,  who 
thereby  conferred  incalculable  advantages  upon  mankind. 
Yet  who  loved  their  country  more? 

If  a  man  has  a  right  to  emigrate,  he  has  likewise  the 
right  of  expatriation  ;  for  man  ought  to  be  a  citi/en  ac- 
cording to  his  destiny.  It  is  plain,  says  Mr.  Locke,  by 
the  law  of  right  reason,  that  a  child  is  born  a  subject  of 


LECTURE   ON   THE   LAW.  165 

no  country  or  government.  He  is  under  his  father's 
tuition  and  authority  until  he  comes  to  the  age  of  dis- 
cretion, and  then  he  is  a  freeman,  at  liberty  to  choose 
what  government  he  will  put  himself  under,  what  body 
politic  he  will  unite  himself  to. 

"  O  glorious  regulations !  originally  established  by 
our  ancestors  of  Roman  name,"  said  Tully,  "  that  no  one 
of  us  should  be  obliged  to  more  than  one  society  ;  that 
no  one,  contrary  to  his  inclination,  should  be  deprived  of 
his  right  of  citizenship  :  and  that  no  one,  contrary  to  his 
inclination,  should  be  obliged  to  continue  in  that  relation. 
The  power  of  retaining  and  of  renouncing  our  rights  of 
citizenship  is  the  most  stable  foundation  of  our  liberties." 

In  civil  society  previously  to  the  institution  of  civil 
government,  all  men  are  equal.  From  one  source  the 
whole  human  race  has  sprung. 

When  it  is  said,  "  all  men  are  equal,"  it  is  not  meant 
to  apply  this  equality  to  their  virtues,  their  talents, 
their  dispositions,  or  their  acquirements.  In  all  these 
respects  there  is,  and  it  is  fit  for  the  great  purposes  of 
society  that  there  should  be,  great  inequality  among  men. 
In  the  moral  and  political  as  well  as  in  the  natural  world, 
diversity  forms  a  part,  an  important  part,  of  beauty  and 
utility.  How  spiritless,  how  dull,  would  man,  would  hu- 
man life  and  manners  be  without  the  beautiful  variety  of 
colors  reflected  upon  them  by  different  tastes,  different 
tempers,  and  different  characters  ! 

Men  are  formed  mutually  to  afford  and  to  stand  in 
need  of  service  and  assistance.  The  social  happiness 
arising  from  the  intercourse  of  good  offices  could  not 
otherwise  be  enjoyed.  Hence  the  necessity  of  great 
variety  and  of  great  inequality  in  the  talents  of  men, 
bodily  as  mental.1 

1  "  Had  it  been  the  intention  of  Providence  that  some  men  should 
govern  the  rest  without  their  consent,  we  should  have  seen  as  indis- 


166  LECTURE   ON   THE   LAW. 

Observe  the  varieties  of  human  genius,  human  disposi- 
tions, and  human  characters  !  One  man  has  a  turn  for 
mechanics,  another  for  architecture  :  one  paints,  another 
writes  poems  ;  this  excels  in  the  arts  of  a  military,  the 
other  in  those  of  a  civil  life.  It  is  difficult,  perhaps 
impossible,  to  account  for  these  varieties  of  taste  and 
character.  But  their  final  course,  the  intention  of  Prov- 
idence, we  can  see  and  admire.  They  induce  different 
persons  to  choose  different  professions  and  employments 
in  life.  These  render  mankind  equally  beneficial  to  each 
other,  and  prevent  too  violent  oppositions  in  the  same 
pursuit.  Hence  we  enjoy  a  variety  of  conveniences  ;  the 
numerous  arts  and  sciences  have  been  invented  and  im- 
proved, the  sources  of  commerce  and  intercourse  between 
different  nations  have  been  opened,  the  circulation  of 
truth  has  been  quickened  and  promoted,  and  the  opera- 
tions of  social  virtues  have  been  multiplied  and  enlarged. 

Pope,  in  his  "Essay  on  Man/'  philosophically  ob- 
serves :  — 

"  Heaven  forming  each  on  other  to  depend 
Bids  each  on  other  for  assistance  call, 
Till  one  man's  weakness  grows  the  strength  of  all. 
Wants,  frailties,  passions,  closer  still  ally 
The  common  interest,  or  endear  the  tie  ; 
To  these  we  owe  true  friendship,  love  sincere, 
Each  home-felt  joy  that  life  inherits  here." 

But,  however  great  the  variety  and  inequality  of  men 
may  be  with  regard  to  virtue,  talents,  taste,  and  acquire- 

putable  marks  distinguishing  these  superiors  from  (hose  placed 
under  them  as  those  which  distinguish  men  from  the  brutes.  The 
remark  of  Rumbald,  in  the  non-resistance  time  of  Charles  II., 
evinced  propriety  as  well  as  wit.  He  could  not  conceive  that 
the  Almighty  intended  that  the  greatest  part  of  mankind  should 
conic  into  the  world  with  saddles  on  their  backs  and  bridles  in  their 
mouths,  and  that  a  few  should  come  ready  booted  and  spurred  to 
ride  the  rest  to  death."  —  Wtfxon'x  Work*,  vol.  i. 


LECTURE   ON   THE   LAW.  167 

ments,  there  is  still  one  aspect  in  which  all  men  in 
society,  previous  to  civil  governments,  are  equal.  With 
regard  to  all,  there  is  an  equality  in  rights  and  in  obliga- 
tions, there  is  that  jus  cequum,  that  equal  law  in  which 
the  Romans  placed  true  freedom.  The  natural  rights 
and  duties  of  man  belong  equally  to  all.  Each  forms 
a  part  of  that  great  system  whose  greatest  interest  and 
happiness  are  intended  by  all  the  laws  of  God  and  na- 
ture. Pie  has,  therefore,  a  right  to  exercise  his  powers 
in  such  a  manner  and  upon  such  objects  as  his  inclination 
and  judgment  shall  direct,  provided  he  does  no  injury 
to  others  and  more  public  interests  do  not  demand  his 
labors. 

This  right  is  natural  liberty,  suggested  to  us  by  the 
selfish  part  of  our  constitution,  by  our  generous  affections, 
and  by  our  moral  sense.  States  which  manage  best  their 
affairs  will  offer  the  strongest  inducements  to  their  own 
citizens  to  remain,  and  to  others  to  incorporate  among 
them.  It  is  both  inhuman  and  unjust  to  convert  the  state 
into  a  prison  for  its  citizens  by  preventing  them  from 
leaving  it  on  a  prospect  of  advantages  to  themselves. 

The  important  question  is  then  to  be  considered  :  Has 
a  citizen  a  right  to  dissolve  the  connection,  the  tie  between 
him  and  his  country,  and  renounce  his  allegiance  ? 

The  notion  of  natural,  perpetual,  and  unalienable  al- 
legiance from  the  citizen  to  the  society,  to  the  state,  or  to 
the  king  or  head  of  the  society  of  which  he  was  born  a 
member,  has  been  frequently  and  gravely  discussed  by 
philosophic  writers.  Kent  declares  :  "  In  American  juris- 
prudence, the  better  opinion  would  seem  to  be  that  a 
citizen  cannot  renounce  his  allegiance  to  the  United 
States  without  the  permission  of  government  to  be 
declared  by  law,  and  that,  as  there  is  no  existing  legisla- 
tion on  the  case,  the  rule  of  the  English  common  law 
remains  unaltered.'' 


108  LECTURE   ON   THE   LAW. 

The  old  English  jurists  speak  of  a  law  of  nature 
above  Parliament,  according  to  which  the  indissoluble 
tie  between  subject  and  liege  lord  or  lady  exists,  so  that 
outlawry  could  not  even  affect  the  tie.  A  man  cannot 
abjure  his  native  country  nor  the  allegiance  which  he 
owes  his  sovereign. 

Every  citizen,  it  is  said,  as  soon  as  he  is  born,  is  under 
the  protection  of  the  state,  and  is  entitled  to  all  the 
advantages  arising  from  that  protection.  He  thei'efore 
owes  obedience  to  that  power  from  which  the  protection 
that  he  enjoys  is  derived.  While  he  continues  in  infancy 
and  nonage  he  cannot  perform  the  full  duties  of  obedience. 
The  performance  of  them  must  be  respited  till  he  arrives 
at  the  years  of  discretion  and  maturity.  When  he  arrives 
at  those  years,  he  owes  obedience  not  only  for  the  protec- 
tion which  he  then  enjoys,  but  also  for  that  which  from 
his  birth  he  has  enjoyed.  Obedience  now  becomes  a  duty 
founded  on  principles  of  gratitude  as  well  as  of  interest ; 
it  now  becomes  a  debt  which  nothing  but  the  performance 
of  the  duties  of  citizenship  during  a  whole  life  will  dis- 
charge. 

Blackstone  says :  "  Natural  allegiance  is  therefore  a 
debt  of  gratitude  which  cannot  be  forfeited,  canceled,  or 
altered  by  any  change  of  time,  place,  or  circumstance,  nor 
by  anything  but  the  united  concurrence  of  the  legisla- 
ture." 

Refraining  from  unnecessary  criticism,  it  is  just  to  state 
that  Blackstone  finally  acknowledges  (vol.  i.  p.  24)  :  "  It 
is  found  by  experience  that  whenever  the  unconstitutional 
oppressions,  even  of  the  sovereign,  advance  with  gigantic 
strides  and  threaten  desolation  to  a  state,  mankind  will 
not  be  reasoned  out  of  the  feelings  of  humanity,  nor  will 
sacrifice  their  liberty  by  a  scrupulous  adherence  to  those 
political  maxims  which  were  originally  established  to 
preserve  it.  .  .  .  Law  and  history  leave  it  to  future  gen- 


LECTURE   ON  THE   LAW.  169 

erations  whenever  necessity  and  the  safety  of  the  whole 
shall  require  it,  the  exertion  of  these  inherent  though 
latent  powers  of  society,  which  no  climate,  no  constitution, 
no  time,  no  contract,  can  ever  destroy  or  diminish." 

How  then  can  allegiance  be  a  natural,  perpetual, 
unalienable  tie  and  duty  from  the  citizen  to  the  state? 
We  are  told,  "  It  became  a  debt  of  gratitude."  A  debt 
of  gratitude  !  What  for  ?  "  That  protection  which  the 
country  or  sovereign  affords  him."  Protection!  Suppose 
the  sovereign  strives  to  undermine  the  laws  made  for  his 
protection ;  refuses  to  enforce  those  which  are  essential  to 
the  enjoyment  of  his  personal  rights  to  liberty,  the  acqui- 
sition and  possession  of  property,  the  equal  right  to  free- 
dom of  labor,  to  security  and  the  pursuit  of  happiness, 
and  to  just  and  free  government.  Suppose  the  sovereign 
assumes  power  absolute  and  direct,  and  strives  by  unequal 
taxation  and  grinding  exactions,  'by  harsh  monopolies  and 
other  grants  of  privileges,  to  defeat  and  destroy  the  just 
objects  of  the  state. 

Suppose  the  citizen,  under  these  circumstances,  feels  no 
gratitude,  and  is  right  in  not  feeling  it,  because  nothing 
has  been  bestowed  upon  him  to  be  thankful  for ! 

No  one  now  will  be  so  hardy  as  to  maintain  that  sub- 
jects must  submit  without  resistance  to  a  Ileliogabalus. 
The  allegiance  of  the  French,  who  have  sworn  it  within 
the  last  hundred  years,  has  been  to  ever  so  many  persons 
and  governments.  Nature  binds  us  by  a  kind  of  instinct 
to  the  place  where  we  received  our  first  breath,  but  often 
some  causes  weaken  or  destroy  this  impression.  The 
injustice  or  severity  of  the  government  may  efface  it. 
'•  The  deep-rooted  feeling  of  every  true  heart  toward  the 
nation  to  which  we  belong  by  blood  would,"  writes  Lieber, 
"  have  afforded  a  far  better  foundation  for  national  alle- 
giance than  a  feeble  one  of  gratitude  ;  love  to  the  country 
of  our  birth  in  many  instances  outlives  our  gratitude." 


170  LECTURE   ON   THE  LAW. 

The  meanest  factory-boy  in  Manchester  may  still  feel 
attached  to  England,  but  it  would  be  very  difficult  to 
point  out  what  reason  he  has  for  gratitude.  Is  he  not 
quit  with  the  state  as  to  gratitude  every  evening  after 
an  unrequited  day  of  overwhelming  labor  ? 

Who  is  bound  to  be  grateful,  the  state,  or  the  poor 
man  who  has  always  lived  by  his  work,  paid  heavy  taxes, 
and  is  finally  pressed  into  sea  service  where  he  is  crip- 
pled ?  All  nations  allow  the  state  to  force  him  to  expose 
his  life. 

Colonization  here  presents  itself  for  consideration,  but 
before  entering  immediately  upon  it  we  desire  to  refer 
anew  to  obedience  and  the  power  of  the  state  in  its  jural 
relation.  We  have  seen  that  commanding  and  obeying 
are  the  two  foundations  of  all  human  society ;  that  society 
without  laws  would  lose  its  moral  character,  and  there- 
fore man's  destiny  requires  obedience  to  laws.  To  make, 
acknowledge,  and  obey  laws  is  one  of  the  high  preroga- 
tives as  well  as  duties  of  man  among  all  the  animate 
beings  of  the  visible  creation. 

"  Stranger,  tell  the  Lacedaemonians  that  we  lie  here  in 
obedience  to  their  laws."  This  was  the  simple  inscrip- 
tion to  commemorate  the  heroic  and  conscious  devotion  of 
the  faithful  band  of  L/eonidas  at  Thermopylae,  and  in 
which  a  nation  of  peculiar  sagacity  and  promptitude  of 
mind  as  well  as  ardor  of  soul  for  liberty,  a  nation  with 
whom  "  freedom  was  what  the  sun  is,  the  most  brilliant 
and  most  useful  object  of  creation,  a  passion,  an  instinct, 
thought  to  express  the  highest  acknowledgment  of  a  deed 
which  every  Greek  remembered  with  national  pride.  It 
was  the  true  expression  of  the  public  spirit.  Of  all 
that  was  noble  and  great  in  this  patriotic  act,  the  noblest 
and  greatest  seemed  to  them  that  the  gallant  citizens  had 
been  obedient  to  the  laws  and  their  country,  even  unto 
death.'' 


LECTURE   ON   THE   LAW.  171 

The  state  must  have  power  and  authority  for  its  govern- 
ment. Justice  requires  that  every  man  shall  have  his 
due,  and  this  cannot  be  accomplished  without  high  au- 
thority and  power  to  sustain  the  authority.  The  state 
through  its  government  must  protect  every  citizen  against 
any  violation  of  his  rights  by  wrong-doers  or  enemies, 
must  maintain  its  character  as  a  society  of  right,  and  one 
of  the  main  objects  of  the  si;ate  is  to  obtain  jointly  that 
which  is  necessary  for  society,  and  cannot  be  obtained  by 
individual  exertion. 

Public  power  is  founded  upon  confidence  reposed  in 
him  who  has  finalby  to  carry  out  the  law.  However  care- 
fully limited  and  definite,  the  power  granted  may  be 
abused.  There  exists  likewise  an  intense  desire  to  exer- 
cise, practice,  and  apply  it.  It  is  its  very  nature,  and 
without  it  the  world  would  be  at  a  stand. 

Our  discourse  will  here  proceed  to  the  subject  of  colo- 
nization. A  number  of  states  or  societies  may  associate 
or  confederate  together  for  their  mutual  security  and  ad- 
vantage. In  some  respects  such  confederacies  are  to  be 
considered  as  forming  only  one  nation  ;  in  other  respects 
they  are  to  lie  considered  as  still  retaining  their  separate 
political  capacities,  characters,  rights,  and  powers.  The 
word  "colony,"  in  Latin  colonia,  is  derived  from  the  verb 
co/o,  col  ere.  to  till  or  cultivate  the  ground. 

The  formation  of  colonies  is  among  the  oldest  events  in 
history.  Maritime  states,  such  as  those  of  Phoenicia  and 
of  Greece,  which  possessed  only  a  scanty  territory,  would 
have  recourse  to  emigration  as  their  population  increased. 
Commercial  enterprise  seems  to  have  led  both  to  maritime 
discovery  and  to  colonization. 

All  the  different  states  of  ancient  Greece  possessed, 
each  of  them,  but  a  very  small  territory  :  and  when  the 
people  in  any  one  of  them  multiplied  beyond  what  that 


172  LECTURE   ON   THE   LAW. 

territory  could  easily  maintain,  a  part  of  them  were 
sent  in  quest  of  a  new  habitation  in  some  remote  and 
distant  part  of  the  world,  the  warlike  neighbors  who  sur- 
rounded them  on  all  sides  rendering  it  difficult  for  any 
of  them  to  enlarge  its  territory  at  home.  The  mother  city 
(state),  though  she  considered  the  colony  as  a  child,  at  all 
times  entitled  to  great  favor  and  assistance,  and  owing  in 
return  much  gratitude  and  respect,  yet  considered  it  as 
an  emancipated  child,  over  whom  she  pretended  to  claim 
no  direct  authority  or  jurisdiction.  The  colony  settled 
its  own  form  of  government,  enacted  its  own  laws,  elected 
its  own  magistrates,  and  made  peace  or  war  with  its 
neighbors  as  an  independent  state,  which  had  no  occasion 
to  wait  for  the  approbation  or  consent  of  the  mother 
city. 

Rome,  like  most  of  the  ancient  republics,  was  originally 
founded  upon  an  agrarian  law,  which  divided  the  public 
territory  in  a  certain  proportion  among  the  different  citi- 
zens who  composed  the  state.  The  course  of  human 
affairs,  by  marriage,  by  succession,  and  by  alienation, 
necessarily  deranged  this  original  division,  and  frequently 
threw  the  lands  which  had  been  allotted  for  the  main- 
tenance of  many  different  families  iuto  the  possession  of 
a  single  person.  To  remedy  this  disorder,  for  such  it 
was  supposed  to  be.  a  law  was  made  restricting  the  quan- 
tity of  land  which  any  citizen  could  possess  to  five  hun- 
dred jn(j<'i'(i.  about  three  hundred  and  fifty  acres.  The 
law,  however,  though  we  read  of  its  having  been  executed 
upon  one  or  two  occasions,  was  either  neglected  or  evaded, 
and  the  inequality  of  fortunes  went  on  continually  in- 
creasing. The  greater  part  of  the  citizens  had  no  land  ; 
and,  without  it,  the  manners  and  customs  of  those  times 
rendered  it  difficult  for  a  freeman  to  maintain  his  inde- 
pendence. .Among  the  ancient  Romans,  the  lands  of  the 
rich  were  all  cultivated  by  slaves,  who  wrought  under  an 


LECTURE   ON   THE   LAW.  173 

overseer,  who  was  likewise  a  slave ;  so  that  a  poor  free- 
man had  little  chance  of  being  employed  either  as  a 
farmer  or  as  a  laborer.  All  trades  and  manufactures  too, 
even  the  retail  trade,  were  carried  on  by  the  slaves  of  the 
rich  for  the  benefit  of  their  masters,  whose  wealth,  author- 
ity, and  protection  made  it  difficult  for  a  poor  freeman  to 
maintain  the  competition  against  them.  The  citizens, 
therefore,  who  had  no  land  had  scarce  any  other  means 
of  subsistence  but  the  bounties  of  the  candidates  at  the 
annual  elections.  The  tribunes,  when  they  had  a  mind 
to  animate  the  people  against  the  rich  and  the  great,  put 
them  in  mind  of  the  ancient  division  of  land,  and  repre- 
sented that  law  which  restricted  this  sort  of  private  prop- 
erty as  the  fundamental  law  of  the  republic.  The  people 
became  clamorous  to  get  land,  and  the  rich  and  the  great 
were  determined  not  to  give  them  any  part  of  theirs.  To 
satisfy  them  in  some  measure,  therefore,  they  frequently 
proposed  to  send  out  a  new  colony. 

But  Koine,  Victi'ix  Roma,  in  her  career  of  conquest,  was 
not,  even  upon  such  occasions,  under  a  necessity  of  forcing- 
out  her  citizens  to  seek  their  fortune  through  the  wide 
world,  without  knowing  where  they  were  to  settle.  She 
assigned  them  lands,  generally  in  the  conquered  lands  of 
Italy,  where,  being  within  the  dominion  of  the  republic, 
they  could  never  form  an  independent  state,  but  were  at 
best  a  sort  of  corporation,  which,  though  it  had  the  power 
of  enacting  by-laws  for  its  government,  was  at  all  times 
subject  to  the  correction,  jurisdiction,  and  legislative  au- 
thority of  the  mother  city.  The  sending  out  a  colony  of 
this  kind  gave  some  satisfaction  to  the  people,  and  often 
established  a  sort  of  garrison  in  a  newly-conquered  prov- 
ince, the  obedience  of  which  might  otherwise  have  been 
doubtful. 

A  Roman  colony,  therefore,  whether  we  consider  the 
nature  of  the  establishment  itself  or  the  motives  for  rnak- 


174  LECTURE   ON   THE   LAW. 

ing  it,  was  altogether  different  from  a  Greek  one.  Both 
institutions,  however,  derived  their  origin  either  from 
necessity  or  from  clear  and  evident  utility. 

The  establishment  of  the  European  colonies  in  Amer- 
ica and  the  West  Indies  arose  from  no  necessity  :  and  its 
utility  was  not  perhaps  then  well  understood. 

When  Columbus  returned  from  his  first  voyage  of 
discovery,  and  was  introduced,  as  we  are  told,  with  a  sort 
of  triumphal  honor  to  the  sovereigns  of  Castile  and 
Aragon,  St.  Domingo  was  represented  as  a  country 
abounding  with  gold,  and  an  inexhaustible  source  of  real 
wealth  to  the  crown  and  kingdom  of  Spain.  The  council 
of  Castile  determined  to  take  possession  of  countries  of 
which  the  inhabitants  were  plainly  incapable  of  defending 
themselves.  The  pious  purpose  of  converting  them  to 
Christianity  sanctified  the  injustice  of  the  project.  But 
the  hope  of  finding  treasure  of  gold  there  was  the  sole 
motive  which  prompted  to  undertake  it ;  and  to  give  the 
motive  the  greater  weight,  it  was  proposed  that  half  of 
all  the  gold  and  silver  that  should  be  found  there  should 
be  given  to  the  Crown.  This  proposal  was  approved  by 
the  council.  The  other  enterprises  of  the  Spaniards  in 
the  New  World,  subsequent  to  those  of  Columbus,  seem 
to  have  been  prompted  by  the  same  motive. 

It  was  the  sacred  thirst  of  gold,  diiri  sacra  fames.  The 
same  avidity,  the  same  passion,  which  has  suggested  to  so 
many  people  the  absurd  idea  of  the  philosopher's  stone, 
has  suggested  to  others  the  equally  absurd  one  of  im- 
mense rich  mines  of  gold  and  silver.  The  dream  of 
Sir  Walter  Raleigh  concerning  the  golden  city  and  coun- 
try of  Eldorado  may  satisfy  us  that  even  wise  men  are 
not  always  exempt  from  such  strange  delusions.  Every 
Spaniard  who  sailed  to  America  expected  to  find  an  El- 
dorado. The  first  adventurers  of  all  the  other  nations  of 
Europe,  who  attempted  to  make  settlements  in  America, 
were  animated  by  the  like  chimerical  views. 


LECTURE   ON   THE   LAW.  175 

The  colony  of  a  civilized  nation,  which  takes  possession 
of  a  waste  country,  advances  more  rapidly  to  wealth  and 
greatness  than  any  other  human  society.  It  carries  out 
with  it  a  knowledge  of  agriculture  and  other  useful  arts, 
the  habit  of  subordination,  and  some  notion  of  govern- 
ment and  the  administration  of  justice  and  law  in  the 
mother  country,  and  usually  establishes  something  of  the 
same  kind  in  the  new  settlement. 

The  progress  of  many  of  the  ancient  Greek  colonies 
seems  to  have  been  very  rapid,  but  the  progress  of  the 
Roman  colonies  seems  never  to  have  been  very  rapid. 
They  were  established  in  conquered  provinces  fully  in- 
habited before,  and  allowed  to  manage  their  own  affairs 
in  the  way  that  they  judged  most  suitable  to  their  own 
interest. 

In  the  plenty  of  good  land,  the  European  colonies 
established  in  America  and  the  West  Indies  resemble, 
and  even  greatly  surpass,  those  of  ancient  Greece.  In 
their  dependency  on  the  mother  state  they  resemble  those 
of  ancient  Rome.  But  their  great  distance  from  Europe 
alleviated  more  or  less  the  effects  of  this  dependency. 
Their  situation  placed  them  less  in  the  view  and  less  in 
the  power  of  their  mother  country.1 

These  remarks  on  colonies,  true  in  themselves,  contain 
no  reference  to  any  special  instance  of  colonial  establish- 
ment, progress,  and  history. 

In  1820  the  Pilgrim  Society  of  Massachusetts  was 
formed,  "  to  commemorate  the  landing  and  to  honor  the 

J  O 

memory  of  the  men  who  first  set  foot  on  Plymouth  Rock," 
and  Mr.  Webster  was  invited  to  deliver  a  discourse  on 
the  "  22d  of  December,  the  close  of  the  second  century  of 
the  Fathers." 

The    discourse  delivered    by  him  in   pursuance  of  the 
invitation  stated  the  causes   and   the  motives   which   in- 
1  Adam  Smith,  Wealth  of  Nations. 


17G  LECTURE   ON   THE  LAW. 

duced  the  first  settlers  of  Plymouth  to  relinquish  their 
native  country,  and  to  seek  an  asylum  in  an  unexplored 
land,  with  a  tribute  to  the  memory  of  the  Puritans,  and  a 
touching  picture  of  their  sufferings  on  both  sides  of  the 
water  ;  the  progress  of  New  England  during  the  century 
which  had  then  elapsed,  with  some  wise  and  profound 
observations  on  the  principles  iipon  which  society  and 
government  are  established  in  this  country.  It  was  an 
eloquent  and  noble  disquisition  of  the  illustrious  Ameri- 
can. 

Edward  Everett  declared,  u  The  occasion  of  the  address 
attracted  attention  more  immediately  to  the  New  England 
colonies  than  to  other  English  colonies  then  established." 
True,  But  it  filled  the  heart  and  mind  of  America,  and 
commanded  the  respect  and  admiration  of  every  enlight- 
ened advocate  of  liberty  ;  it  embraced  the  whole  body  of 
the  republic,  totnm  corpus  rtipvltliccv,  inculcated  good 
faith  to  all  nations,  obedience  of  men  to  the  Creator  and 
liuler  of  the  Universe,  leading  us  progressively  from  in- 
dividual to  social  man,  from  society  to  colonies,  from 
colonies  to  independent  states,  thence  to  associated  and 
confederated  states,  and  to  states  wisely  and  gloriously 
united  to  form  one  country,  one  national  constitution  and 
government,  the  imperial  Republic  of  the  United  States 
of  America, —  H  Plurihux  Unum,on&  formed  from  many, 
to  secure  liberty  and  establish  justice. 

England  had  once  acquired  undisputed  control  over 
the  Indian  tribes,  still  tenanting  the  forests  unexplored 
by  the  European  man.  She  had  established  an  uneon- 
tested  monopoly  of  the  commerce  of  all  her  colonies. 
But  forgetting  all  the  warnings  of  preceding  ages,  for- 
pvtthi"'  the  lessons  written  in  the  blood  of  her  own 

O  «""> 

children  through  centuries  of  departed  time,  she  under- 
took to  tax  the  people  of  the  colonies  without  their  con- 


LECTURE   ON   THE   LAW.  177 

sent,  and  had  claimed  the  right  to  do  so,  and  to  bind  them 
by  her  statutes  in  all  cases. 

Resistance,  instantaneous,  unconcerted,  sympathetic 
resistance,  like  an  electric  shock,  startled  and  roused  the 
people  of  all  the  English  colonies  on  this  continent. 

This  was  the  signal,  the  first  signal,  of  the  North 
American  Union.  The  struggle  was  for  chartered  rights, 
for  liberties,  English  liberties,  for  the  cause  of  Sidney 
and  Ilampden,  for  trial  by  jury,  for  the  habeas  corpus 
and  Magna  Charta.  But  the  English  lawyers  had  de- 
cided that  Parliament  was  omnipotent,  and  Parliament  in 
its  omnipotence,  instead  of  trial  by  jury  and  the  habeas 
corpus,  enacted  admiralty  courts  in  England  to  try  Amer- 
icans for  offenses  charged  against  them  as  committed  in 
America  ;  and,  instead  of  the  privileges  of  Magna  Charta, 
nullified  the  charter  of  Massachusetts  Bay,  shut  up  the 
port  of  Boston,  sent  armies  and  navies  to  keep  the  peace 
and  teach  the  colonies  that  Hampden  was  a  rebel  and 
Algernon  Sidney  a  traitor. 

English  liberties  had  failed  them.  From  the  omnipo- 
tence of  Parliament  the  colonists  appealed  to  the  rights 
of  man  and  the  omnipotence  of  the  God  of  battles. 
'"Union!  Union!'*  was  the  instinctive  and  simultaneous 
cry  throughout  the  land.  Their  Congress,  assembled  at 
Philadelphia,  once,  twice,  had  petitioned  the  king,  had 
remonstrated  to  Parliament,  had  addressed  the  people  of 
Britain  for  the  rights  of  Englishmen  in  vain.  Fleets 
and  armies,  the  blood  of  Lexington,  and  the  fires  of 
Charlestown  and  Faluiouth  had  been  the  answer  to  peti- 
tion, remonstrance,  and  address. 

Independence  was  declared.  The  colonies  were  trans- 
formed into  states.  Their  inhabitants  were  proclaimed  to 
be  one  people,  renouncing  all  allegiance  to  the  British 
Crown,  all  co-patriotism  with  the  British  nation,  all  claim 
to  chartered  rights  as  Englishmen.  Thenceforth  their 
1-2 


178  LECTURE   OX    THE   LAW. 

charter  was  the  Declaration  of  Independence,  their  rights 
the  rights  of  mankind,  their  government  such  as  should 
be  instituted  by  themselves  under  the  mutual  pledges  of 
perpetual  union,  founded  on  the  self-evident  truths  pro- 
claimed in  the  Declaration. 

The  Declaration  of  Independence  was  issued  in  a  civil 
war  which  raged  with  fury  six  years.  It  was  a  manifesto 
to  the  world  of  mankind  to  justify  the  one  confederated 
people  for  the  violent  severance  of  the  ties  of  their  alle- 
giance, for  the  renunciation  of  their  country,  and  for  as- 
suming a  station  themselves  among  the  potentates  of  the 
world,  —  a  self-constituted  sovereign,  a  self-constituted 
country. 

The  attempt  of  England  to  monopolize  the  trade  of  the 
colonies,  and  the  continued  effort  on  the  part  of  the  col- 
onies to  resist  or  evade  that  monopoly,  demand  further 
exposure.  The  English  Act  of  Navigation  was  passed  in 
1660.  Its  first  and  grand  object  seems  to  have  been  to 
secure  to  England  the  whole  trade  with  her  plantations  : 
none  but  English  ships  shotdd  transport  American  prod- 
uce over  the  ocean,  to  be  sold  only  in  the  markets  of  the 
mother  country.  It  is  unnecessary  to  detail  other  acts 
or  laws,  passed  subsequently  in  a  like  spirit  to  make  the 
interest  of  the  whole  people  of  the  colonies  subordinate 
to,  and  for  the  exclusive  advantage  of,  another  people. 

The  association  of  the  American  people  into  one  body 
politic  took  place  while  they  were  colonies  of  the  British 
Empire  and  owed  allegiance  to  the  British  Crown.  That 
the  union  of  this  country  was  essential  to  its  safety,  its 
prosperity,  and  its  greatness  had  been  generally  known 
and  frequently  avowed  long  before  the  Revolution  or 
the  claims  of  the  British  Parliament.  As  early  as  1643, 
a  league,  offensive  and  defensive,  distinguished  by  the 
name  of  the  United  Colonies  of  New  England,  was 
entered  into,  and  subsisted,  with  some  alterations,  for 


LECTURE   ON   THE   LAW.  179 

upwards  of  forty  years,  and  part  of  that  time  with  the 
countenance  of  the  government  in  England.  It  was  not 
dissolved  until  1686,  when  the  charters  of  the  New  Eng- 
land colonies  were  in  effect  vacated  by  a  commission 
from  King-  James  II.  The  people  of  this  country  con- 
tinued to  afford  other  precedents  of  association  for  their 
safety. 

Passing  at  once  to  the  interesting  Congress  held  at  Al- 
bany, in  the  year  1754,  of  governors  and  commission- 
ers from  other  colonies  as  well  as  from  New  England,  to 
consider  the  best  means  of  defending  America  in  case 
of  war  with  France,  which  was  then  impending,  we  find 
that  the  object  of  the  English  administration  in  calling 
this  convention  was  in  reference  to  friendly  treaties  with 
the  Indian  tribes.  But  the  colonies  had  more  enlarged 
views.  One  of  the  colonies,  Massachusetts,  expressly 
instructed  her  delegates  to  enter  into  articles  of  union 
and  confederation  with  the  other  colonies,  for  their  gen- 
eral security  in  peace  as  in  war.  The  convention  unani- 
mously resolved  "  that  a  union  of  the  colonies  was  abso- 
lutely necessary  for  their  preservation."  They  rejected 
all  proposals  for  a  division  of  the  colonies  into  sepa- 
rate confederacies,  and  proposed  "  a  plan  of  federal  gov- 
ernment." But  this  bold  project  of  a  continental  union 
had  the  singular  fate  of  being  rejected,  not  only  on  the 
part  of  the  Crown,  but  by  every  provincial  Assembly. 
We  were  destined  to  remain  for  some  years  longer  sep- 
arate, and  in  a  considerable  degree  alien  commonwealths, 
emulous  of  each  other  in  obedience  to  the  parent  state 
and  in  devotion  to  her  interests,  but  jealous  of  each 
other's  interest.  So  strong  was  this,  and  so  exasperated 
were  the  people  of  the  colonies  in  their  disputes  with  each 
other  concerning  boundaries  and  charter  claims,  that 
Franklin  (one  of  the  commissioners  to  the  Congress  that 
formed  the  plan  of  union  in  1754)  observed,  in  the  year 


180  LECTURE   ON   THE   LAW. 

1760,  u  that  a  union  of  the  colonies  against  the  mother 
country  was  absolutely  impossible,  or  at  least  without 
being  forced  by  the  most  grievous  tyranny  and  oppres- 
sion." 

The  great  value  of  a  federal  union  of  the  colonies 
had,  however,  sunk  deeply  into  the  minds  of  men.  The 
necessity  of  union  had  been  felt,  its  advantages  perceived, 
its  principles  explained,  the  way  to  it  pointed  out,  and  the 
people  of  this  country  were  led,  by  the  force  of  irresistible 
motives,  to  resort  to  union,  the  same  means  of  defense  and 
security,  when  they  considered  that  their  liberties  were  in 
danger,  not  from  the  harassing  and  irregular  warfare  of 
the  Indian  tribes,  but  from  the  formidable  claims  and 
still  more  formidable  power  of  the  parent  state. 

The  assertion  by  the  British  Parliament  of  an  unquali- 
fied right  of  binding  the  colonies  in  all  cases  whatsoever, 
and  specifically  of  the  right  of  taxing  them  without  their 
consent,  and  the  denial  by  the  colonies  of  the  right  of 
taxation  without  representation,  and  the  attempt  of  the 
king  and  Parliament  to  enforce  it  by  the  power  of  the 
sword,  were  the  immediate  causes  of  the  American  Kevo- 
lution. 

An  extensive  and  general  association  of  the  colonies 
took  place  in  September,  1774,  and  united  to  send  dele- 
gates to  Philadelphia,  "  with  authority  and  direction  to 
meet  and  consult  together  for  the  common  welfare/  In 
pursuance  of  their  authority,  this  first  Continental  Con- 
gress took  into  consideration  the  afflicted  state  of  their 
country :  asserted  by  resolutions  what  they  deemed  the 
unalienable  rights  of  English  freemen  :  pointed  out  to 
their  constituents  the  system  of  violence  which  was  pre- 
paring against  those  rights  ;  and  urged  them  by  the  most 
sacred  of  all  ties,  the  ties  of  honor  and  of  their  country, 
to  renounce  commerce  with  Great  Britain,  as  being  the 
most  salutary  way  to  defeat  the  one  and  to  secure  the  other. 


LECTURE   ON   THE   LAW.  181 

These  resolutions  received  prompt  and  universal  obe- 
dience, and  "  the  union  thus  auspiciously  formed  was 
continued  by  a  succession  of  delegates  in  Congress,  and 
through  every  period  of  the  war  and 'through  every  revo- 
lution has  been  cherished  as  the  solid  foundation  of  na- 
tional independence." 

In  May,  1775,  a  Congress  again  assembled  at  Philadel- 
phia, and  was  clothed  with  ample  discretionary  powers. 
The  delegates  were  chosen,  as  those  of  the  preceding 
Congress  had  been,  partly  by  the  popular  branch  of  the 
colonial  legislatures  when  in  session,  but  principally  by 
conventions  of  the  people  in  the  several  colonies.  They 
were  instructed  to  "  concert,  agree  upon,  direct,  order, 
and  prosecute  "  such  measures  as  they  should  deem  most 
fit  and  proper  to  obtain  redress  of  American  grievances ; 
or,  in  more  general  terms,  they  were  to  take  care  of  the 
liberties  of  the  country.  Soon  after  this  meeting,  Georgia 
acceded  to  and  completed  the  confederacy  of  the  thir- 
teen colonies.  Hostilities  had  already  commenced  in 
Massachusetts,  and  the  claim  of  the  British  Parliament  to 
an  unconditional  and  unlimited  sovereignty  over  the  colo- 
nies was  to  be  asserted  by  an  appeal  to  arms.  The  Con- 
tinental Congress,  entrusted  with  the  power  and  sustained 
by  the  zeal  and  confidence  of  their  constituents,  prepared 
for  resistance.  They  proceeded  immediately  to  levy  and 
organize  an  army,  prescribed  rules  for  the  government  of 
their  land  and  naval  forces,  contracted  debts,  emitted  a 
paper  currency  upon  the  faith  of  the  union,  and  gradually 
assuming  all  the  powers  of  national  sovereignty,  at  last, 
on  the  fourth  day  of  July,  1776,  took  a  separate  and  equal 
station  among  the  nations  of  the  earth,  declaring  the 
united  colonies  to  be  free  and  independent  states. 

It  was  thought  expedient  for  security  and  duration  to 
define  with  precision,  and  by  a  formal  instrument,  the 
nature  of  our  compact,  the  powers  of  Congress,  the 
residuary  sovereignty  of  the  states. 


182  LECTUKK    OX    THE    LAW. 

On  the  llth  of  June,  1776,  Congress  undertook  to  di- 
gest and  prepare  Articles  of  Confederation,  but  it  was  not 
until  the  15th  of  November,  1777,  that  Congress  could 
so  far  unite  the  discordant  interests  and  prejudices  of 
thirteen  distinct  communities  to  agree  to  the  Articles 
of  Confederation,  and  the  articles  submitted  were  declared 
to  be  "  the  result  of  impending  necessity  and  of  a  disposi- 
tion for  conciliation  as  the  best  system  which  could  afford 
any  tolerable  prospect  of  general  assent." 

These  Articles  met  great  obstacles  in  their  progress 
through  the  States.  Most  of  the  legislatures  ratified 
them  with  a  promptitude  which  showed  their  sense  of 
the  necessity  of  the  confederacy  and  of  the  indulgence  of 
a  liberal  spirit  of  accommodation.  But  Delaware  did  not 
accede  to  them  until  the  year  1779,  and  Maryland  at  first 
rejected  them,  but  assented  to  them  on  the  1st  of  March, 
1781,  upwards  of  three  years  from  their  first  promulga- 
tion :  and  thus  the  Articles  of  Confederation  received 
the  unanimous  approbation  of  the  United  States. 

The  government  of   the   Union   is   considered   to  have 

O 

been  revolutionary  in  its  nature  from  its  first  institution 
by  the  people  of  the  colonies,  in  1774,  down  to  the  final 
ratification  of  the  Articles  of  Confederation,  in  1781, 
and  to  have  possessed  powers  adequate  to  every  national 
emergency,  and  coextensive  with  the  object  to  be  attained. 
Kent  says  of  the  Articles  of  Confederation  that  they  were 
in  fact  but  a  digest,  and  even  limitation,  of  the  sovereign 
powers,  undefined,  but  delegated  bv  the  people  of  the 
colonies  to  Congress  in  177«>,  and  freely  exercised  and 
implicitly  obeyed. 

In  the  enthusiasm  of  their  first  union  they  had  flattered 
themselves  that  no  general  government  would  be  required. 
As  separate  states  they  were  all  agreed  that  they  should 
constitute  and  govern  themselves.  The  progress  of  the 
British  arms  excited  apprehension  for  our  safety.  The 


LECTURE   ON   THE   LAW.  183 

Revolution  under  which  they  were  suffering  and  gasping, 
the  war  which  was  carrying  desolation  into  their  dwell- 
ings and  mourning  into  every  family,  had  been  kindled 
by  the  abuse  of  power,  the  power  of  government.  An 
invincible  repugnance  to  the  delegation  of  power  had  thus 
been  generated  by  the  very  course  of  events  which  had 
rendered  it  necessary ;  and  the  more  indispensable  it 
became,  the  more  awakened  was  the  jealousy  and  the 
more  intense  was  the  distrust  by  which  it  was  to  be  cir- 
cumscribed. 

Notwithstanding  the  undefined  and  discretionary  sov- 
ereign powers  which  were  delegated  by  the  people  of  the 
colonies  to  Congress  in  1775,  and  which  had  been  freely 
exercised  and  implicitly  obeyed,  a  remarkable  instance  of 
this  original,  dormant,  vast  discretion  appears  on  the 
journals  of  Congress  the  latter  end  of  the  year  1776. 
The  progress  of  the  British  arms  had,  at  that  period, 
excited  the  most  alarming  apprehension  for  our  safety, 
and  Congress  transferred  to  the  commander-in-chief  for 
the  term  of  six  months  complete  dictatorial  power  over  the 
liberty  and  property  of  the  citizens  of  the  United  States. 
Such  loose,  undefined  authority  as  the  Union  originally 
possessed  was  absolutely  incompatible  with  any  regular 
notions  of  liberty.  Though  it  was  exercised  with  the 
best  intentions  and  under  the  impulse  of  an  irresistible 
necessity,  yet  such  an  irregular  sovereignty  can  never  be 
durable.  It  will  either  dwindle  into  insignificance  or 
degenerate  into  despotism.  Disobedience  to  the  laws  of 
the  Union  must  be  submitted  to  by  the  government  to  its 
osvn  disgrace,  or  those  laws  must  be  enforced  by  arms. 

Story,  in  a  brief  history  of  the  confederation,  says : 
"  One  of  the  first  objects  beyond  that  of  the  immediate 
public  safety  which  engaged  the  attention  of  the  Conti- 
nental Congress  was  to  provide  the  means  of  a  perma- 
nent union  of  all  the  colonies  under  a  general  government. 


184  LECTURE   ON   THE   LAW. 

The  deliberations  on  this  subject  led  the  Continental 
Congress,  after  various  debates  and  discussions,  to  agree 
upon  a  frame  of  government  in  Articles  of  Confederation 
in  November,  1777,  which  were  sent  to  all  the  States  for 
their  adoption  and  ratification,  but  were  not  finally 
adopted  until  March,  1781,  upwards  of  three  years  from 
their  first  promulgation,  when  they  received  the  unani- 
mous approbation  of  the  United  States." 

The  Articles  of  Confederation  had  scarcely  been 
adopted  before  the  defects  of  the  plan  as  a  frame  of 
national  government  began  to  manifest  themselves.  It 
was  remarked  by  an  eminent  statesman  that  they  gave 
authority  for  the  following  purposes  without  being  able 
to  execute  any  one  of  them  :  -i  They  may  appoint  am- 
bassadors, but  they  cannot  defray  even  the  expenses  of 
their  tables.  They  may  borrow  money  in  their  own  name 
on  the  faith  of  the  Union,  but  they  cannot  pay  a  dollar. 
They  may  coin  money,  but  they  cannot  import  an  ounce 
of  bullion.  They  may  make  war  and  determine  what 
number  of  troops  are  necessary,  but  they  cannot  raise  a 
single  soldier.  In  short,  they  may  declare  everything,  but 
they  can  do  nothing.  ' 

The  colonies  relaxed  their  union  into  a  league  of  friend- 
ship between  sovereign  and  independent  states.  They 
constituted  a  Congress  coextensive  with  the  nation,  but  so 
hedged  and  hemmed  in  with  restrictions  that  the  limita- 
tion seemed  to  be  the  rule,  and  the  grant  the  occasional 
exception.  The  Articles  of  Confederation,  subjected  to 
philosophical  analysis,  seem  to  be  little  more  than  an 
enumeration  of  the  functions  of  a  national  government, 
which  the  Congress  constituted  by  the  instrument  was  not 
authorized  to  perform.  There  was  no  executive  power. 

Tin;  confederacy  of  sovereign  states  made  itself  known 
by  its  fruits.  All  agreed  that  something  must  be  done 
to  meet  the  exigencies  of  the  occasion. 


LECTURE   ON   THE   LAW.  185 

Story  closes  his  remarks  on  the  history  of  the  con- 
federation with  declaring  "  that  from  the  predominance 
of  state  jealousies,  and  the  supposed  incompatibility  of 
state  interests  with  each  other,  it  became  apparent  that 
the  confederation,  being  left  without  resources  and  with- 
out power,  must  expire  of  its  own  debility.  It  had  lost 
all  vigor,  and  even  ceased  to  be  respected,  and  the  only 
question  which  remained  was,  whether  the  confederation 
should  be  left  to  a  silent  dissolution,  or  an  attempt  should 
be  made  to  form  a  more  efficient  government." 

Such  was  the  condition  of  the  founders  of  our  inde- 
pendence when  peace  came,  in  1783. 

"  Our  fathers  raised  their  flag  against  a  power  to  which, 
for  purposes  of  foreign  conquest  and  subjugation,  Rome, 
in  the  height  of  her  glory,  is  not  to  be  compared  :  a  power 
which  has  dotted  the  surface  of  the  whole  globe  with  her 
possessions  and  military  posts,  whose  morning  drum-beat, 
following  the  sun  in  his  course  and  keeping  pace  with  the 
hours,  circles  the  earth  with  one  contiguous  and  unbroken 
strain  of  the  martial  airs  of  England."  This  description 
of  English  power  by  Mr.  Webster  points  to  the  time 
when  the  fathers  raised  the  national  flag  of  the  United 
States  and  proclaimed  their  independence  to  the  world  in 
1776. 

The  Parliament  of  Great  Britain  asserted  a  right  to  tax 
the  colonies  in  all  cases  whatsoever  ;  and  it  was  on  this 
question  our  fathers  made  the  Revolution  turn.  The 
amount  of  taxation  was  trifling,  but  the  claim  itself  was 
inconsistent  with  liberty,  and  contained  a  seminal  prin- 
ciple of  mischief,  the  germ  of  unjust  power.  This,  how- 
ever plausibly  disguised,  did  not  elude  the  clear  and 
steady  eye  of  the  colonists.  They  detected  it,  dragged  it 
forth  ;  did  not  wait  till  the  government  was  overthrown, 
or  liberty  itself  was  put  in  extreme  jeopardy.  The  claim, 
the  assertion,  threw  the  whole  country  into  a  flame.  One 


186  LECTURE   ON   THE    LAW. 

mind  animated  the  whole  mass.  They  raised  the  flag 
against  the  British  assertion,  took  up  arms,  declared  war, 
and  poured  forth  their  treasures  of  blood  and  means  in 
opposition  to  British  assertion  and  power. 

The  government  of  the  United  States  passed  through 
three  forms  :  (1)  the  revolutionary,  (2)  the  confederate, 
(3)  the  constitutional.  The  first  and  the  third  proceeded 
equally  from  the  people  in  their  original  capacity.  The 
first  was  supported  by  Articles  of  Confederation.  The 
Continental  Congress  conducted  the  national  affairs  until 
near  the  close  of  the  Revolution,  and  extended  only  to 
the  maintenance  of  the  public  liberties  of  all  the  States 
during  the  contest  with  Great  Britain,  and  it  would 
naturally  terminate  with  the  return  of  peace  and  the  ac- 
complishment of  the  ends  of  the  revolutionary  contest. 

How  great,  then,  would  be  the  danger  of  the  separation 
of  the  confederated  states  into  independent  communities, 
acknowledging  no  common  head  and  acting  upon  no  com- 
mon system,  presented  to  the  consideration  of  Congress  ! 

The  Articles  of  Confederation  constituted  a  system  elab- 
orated with  great,  persevering,  and  anxious  deliberation, 
animated  with  the  most  ardent  patriotism,  put  together 
with  eminent  ability  and  untiring  industry,  but  vitiated 
by  the  difficulty  of  combining  in  one  general  system  the 
various  sentiments  and  interests  of  a  great  extent  of  coun- 
try divided  into  so  many  sovereign  and  independent 
communities.  It  is  an  error,  a  popular  error,  to  suppose 
that  the  Articles  of  Confederation  carried  the  country 
through  the  war.  Those  Articles  were  not  finally  adopted 
till  the  spring  of  1781.  a  few  months  before  the  war  was 
virtually  brought  to  a  close  by  the  surrender  at  York- 
town. 

JV;ice  came.  The  United  States  of  America  were 
recogni/ed  as  free  and  independent,  and.  as  one  people, 
took  tlfir  station  among  the  powers  of  the  earth.  \\  hen 


LECTURE   ON   THE   LAW.  187 

the  perils  of  war  ceased,  and  the  formal  treaty  of  peace 
was  signed  with  Great  Britain,  the  confederacy,  the 
Articles  of  Confederation,  proved  as  incompetent  to  guard 
our  fathers,  conduct  and  govern  them  in  peace,  as  it  had 
been  to  conduct  them  in  war. 


COMMERCE. 

[Delivered  as  an  introductory  lecture  to  the  law  students  of 
the  University  of  Louisiana,  before  treating  in  detail  the  various 
branches  of  commercial  law.] 

THE  commercial  intercourse  of  nations  and  that  of  in- 
dividuals establish  relations,  impose  duties  and  obliga- 
tions, and  give  birth  to  contracts  often  of  a  peculiar 
nature.  These  contracts  may  be  governed  by  the  law  of 
nature  and  of  nations,  or  by  the  civil  and  municipal  law, 
or  by  the  special  agreement  and  stipulations  of  the  parties 
to  them.  A  just  idea  of  commerce  and  its  operations  is 
necessary  to  understand  its  jurisprudence. 

I  commence,  therefore,  with  an  essay  on  its  origin, 
progress,  true  character,  and  nature,  and  will  next  con- 
sider the  history  of  the  law  that  governs  it,  the  general 
rules  of  nature  and  justice  recognized  by  custom  as  part 
of  that  law,  and  the  special  rules  of  civil  or  municipal 
authority  applicable  to  and  affecting  it. 

I  propose,  then,  to  treat  more  in  detail  of  commercial 
law,  in  the  following  order,  adopted  as  the  simplest  and 
most  comprehensive:  (1.)  Of  mercantile  persons,  or  those 
by  whose  intervention  trade  is  carried  on.  (2.)  Of  mer- 
cantile property,  or  that  which  they  seek  to  acquire. 
(3.)  Of  mercantile  contracts,  or  the  arrangements  they 
may  adopt  to  effect  this  acquisition.  (4.)  Of  mercantile 
remedies,  or  the  mode  in  which  these  arrangements  and 
their  proper  execution  may  be  enforced. 

The  origin  of  commerce  is  lost  in  the  mists  of  an- 
tiquity. It  is  coeval  with  the  iirst  dawn  of  civilixation. 
It  is  the  first  offspring  of  the  right  of  property. 


COMMERCE.  189 

The  buffalo  hide,  the  deerskin,  the  jerked  meat,  the 
gathered  corn  of  an  Indian,  the  cabin  itself,  with  all 
the  accumulated  fruits  of  the  earth  and  the  products  of 
the  chase  in  it,  are  the  property  of  the  owner,  being  the 
result  of  his  own  labor  and  savings.  Having  more  than 
his  own  immediate  necessities  require,  he  may  labor  for 
what  is  merely  convenient.  He  may  make  bows  and 
arrows,  or  he  may  trap  bears  and  otters  for  their  skins, 
and  he  may  exchange  these  for  other  articles.  Hence 
the  origin  of  barter,  or  the  exchange  of  commodities  for 
commodities  ;  in  a  word,  commerce,  commutatio  mercium. 
The  moment  that  individuals  ceased  to  supply  themselves 
directly  with  the  various  articles  and  commodities  they 
made  use  of,  that  moment  must  a  commercial  intercourse 
have  begun  to  grow  up  among  them. 

If  the  exchange  of  different  products  were  carried  on 
by  the  producers  themselves,  they  would  necessarily  lose  a 
great  deal  of  time  and  experience  much  inconvenience, 
while  the  work  of  production  itself  would  meet  with  per- 
petual interruption.  To  obviate  this  inconvenience,  a 
distinct  class  of  persons  —  merchants  —  sprang  up,  whose 
business  it  was  to  collect  the  surplus  products  of  men's 
labor  and  to  exchange  these  with  individuals,  who  niio-ht 

o  o 

offer  in  barter  other  articles  made  by  themselves.  To 
supersede  the  necessity  of  bartering,  or  exchanging,  the 
innumerable  variety  of  commodities,  some  measure  of 
value,  some  common  standard  of  exchange,  was  requisite, 
in  reference  to  which  every  article  might  be  valued  :  and 
in  most  civilized  countries  the  precious  metals,  gold  and 
silver,  as  having  an  intrinsic  value  which  fluctuates  very 
little,  were  adopted  for  the  purpose. 

In  some  parts  of  Africa  the  money  consisted  of  the 
shells  called  cowries,  in  other  parts  of  bars  of  iron.  In 
Virginia,  for  a  long  time,  tobacco  was  the  common  stan- 
dard of  reference,  the  money  of  the  country.  Sir  James 


190  COMMERCE. 

Stuart  distinguished  it  in  his  political  economy  as  "  money 
of  account,"  in  contradistinction  from  money  coin. 

Homer,  whose  writings  abound  with  descriptions  of 
ancient  manners  and  customs,  draws  a  striking  picture  of 
barter  as  it  was  carried  on  some  three  thousand  years 
ago.  At  the  close  of  the  seventh  book  of  the  Iliad  he 

D 

describes  the  arrival  of  a  fleet  of  merchant  vessels  from 
Lemnos  freighted  with  wine,  and  the  Greeks  hastening  to 
exchange  for  it  brass,  gleaming  iron,  hides,  cattle,  and 
slaves :  — 

"  Of  wine  they  purchased  at  their  proper  cost  ; 
And  well  the  plenteous  freight  supplied  the  host. 
Each,  in  exchange,  proportioned  treasure  gave  : 
Some,  brass  or  iron  ;  some,  an  ox  or  slave. 
All  night  they  feast,  —  the  Greek  and  Trojan  powers  : 
Those  in  the  fields,  and  these  within  their  towers." 

POPK,  Iliad,  Book  vii. 

But  we  have  an  instance  of  the  use  of  money,  and  of 
the  custom  of  merchants  at  an  earlier  date,  recorded  in 
holy  writ,  where  Abraham  is  described  as  weighing  to 
Ephron  "  four  hundred  shekels  of  silver,  current  money 
with  the  merchant."  (Gen.  xxiii.  16.) 

Merchants  are  generally  divided  into  two  classes,  the 
wholesale  dealers  and  the  retail  dealers.  The  wholesale 
dealers  purchase  various  products  in  the  places  where  they 
are  produced,  or  are  least  valuable,  and  carry  them  where 
they  are  more  valuable  or  more  in  demand.  The  retail 
dealers,  having  purchased  the  commodities  of  the  whole- 
sale dealers  or  the  producers,  collect  them  in  shops,  and 
sell  them  in  such  quantities  as  may  best  suit  the  public 
demand.  Each  dealer  confines  himself  to  one  business, 
and  the  necessary  business  of  retail  is  best  conducted  by 
a  distinct  class  of  dealers. 

The  great  commerce  of  every  nation  is  its  internal 
commerce  or  home  trade,  —  that  which  is  carried  on  at 


COMMERCE.  H>1 

home,  within  a  nation,  and  more  especially  that  which 
is  carried  on  between  the  inhabitants  of  the  town  and 
those  of  the  country.  It  consists  in  the  exchange  of 
rude,  raw  materials  for  manufactured  produce.  This  ex- 
change is  sometimes  made  immediately,  but  it  is  gen- 
erally effected  by  the  intervention  of  money,  or  of  some 
paper  that  represents  money.  The  country  supplies  the 
town  with  the  means  of  subsistence  and  the  materials 
of  manufacture.  The  town  repays  this  supply  by  send- 
ing back  a  part  of  the  manufactured  supply  to  the  coun- 
try. This  is  mutually  beneficial.  The  country  purchases 
from  the  town  more  manufactured  goods  with  the  produce 
of  its  own  labor  than  it  must  have  employed  in  preparing 
them  itself.  The  town  affords  a  market  for  the  surplus 
produce  of  the  country.  The  greater  the  number  and 
revenue  of  the  inhabitants  of  the  town,  the  more  extensive 
and  advantageous  is  the  market.  Adam  Smith  says : 
"  Among  all  the  absurd  speculations  that  have  been 
propagated  concerning  the  balance  of  trade,  it  has  never 
been  pretended  that  the  country  loses  by  its  commerce 
with  the  town,  or  the  town  by  that  with  the  country, 
which  sustains  it." 

When  there  is  a  surplus  of  rude  and  manufactured 
articles  for  which  there  is  no  demand  at  home,  they  must 
be  sent  abroad,  in  order  to  be  exchanged  for  something 
for  which  there  is  a  demand  at  home.  As  men  improved 
in  arts  and  refinements,  their  relations  gradually  became 
more  extended.  They  learned  to  trust  their  lives  and 
property  in  vessels,  to  cross  rivers,  to  traverse  seas,  and 
to  exchange  the  products  of  different  countries  and  dif- 
ferent climes. 

It  follows,  then,  that  as  subsistence  is  prior  to  conve- 
nience and  luxury,  and  as  the  industry  which  procures 
the  former  must  be  prior  to  that  which  ministers  to  the 
latter,  the  cultivation  and  improvement  of  the  country 


192  COMMERCE. 

must  have  been  prior  to  the  establishment  of  any  con- 
siderable towns,  and  some  sort  of  manufactures  must  have 
been  carried  on  in  those  towns  before  the  inhabitants 
could  well  think  of  employing  themselves  in  foreign  com- 
merce. And  this  order  of  things,  we  are  informed,  has 
always  been  in  some  degree  observed  in  every  society  that 
possessed  any  territory. 

In  illustration  of  this  it  may  not  be  useless  or  uninter- 
esting to  trace  the  rise  and  progress  of  civilization  and  of 
government  in  the  western  part  of  Europe,  from  the  ruin 
and  degradation  which  followed  the  fall  of  the  Roman 
Empire.  Nowhere  has  this  been  done  better  than  by 
Adam  Smith  in  •'  The  Wealth  of  Nations." 

When  the  German  and  Scythian  hordes  overran  the 
western  provinces  of  the  Roman  Empire,  the  confusion 
which  followed  so  great  a  revolution  lasted  for  several 
centuries.  The  rapine  and  violence  exercised  against  the 
ancient  inhabitants  interrupted  the  commerce  between 
towns  and  the  country.  The  towns  were  deserted,  the 
country  was  left  uncultivated,  and  the  western  provinces 
of  Europe  sank  into  the  lowest  state  of  poverty  and 
barbarism. 

The  chiefs  and  principal  leaders  of  those  nations  ac- 
quired to  themselves  the  greater  portion  of  the  lands  of 
the  provinces.  Land  was  considered  the  means  of  power 
and  protection.  Every  great  landlord  was  a  sort  of  petty 
prince  :  his  tenants  were  his  subjects.  Jn  peace,  he  was 
their  legislator  and  judge  :  in  war,  their  leader,  lie  made 
war,  too,  at  his  discretion,  against  his  neighbor  or  his 
sovereign. 

The  security  of  a  landed  estate,  and  the  protection 
which  the  owner  could  give  to  those  who  dwelt  on  it,  de- 
pended on  its  greatness.  To  divide  it  was  to  ruin  it  and 
expose  it  to  the;  incursions  of  its  neighbors.  Hence,  the 
law  ol  primogeniture  was,  in  process  of  time,  applied  to 


COMMERCE.  193 

the  succession  of  landed  estate  :  and  although,  says  the 
author  of  "  The  Wealth  of  Nations,"  the  proprietor  of  a 
single  acre  of  land,  in  any  state  of  Europe,  is  at  present 
as  secure  of  his  possession  as  the  owner  of  a  hundred 
thousand  acres,  still  the  law  of  primogeniture  prevails. 
The  law  of  entails  was  a  natural  consequence  of  the  law 
of  primogeniture,  and  aided  in  keeping  in  the  hands  of  a 
few  individuals  immense  quantities  of  land.  Large  tracts 
of  land  were  thus  engrossed  and  kept  together  in  particu- 
lar families. 

In  the  disorderly  times  which  gave  rise  to  those  insti- 
tutions, the  great  proprietor  seldom  thought  of  improving 
his  land.  He  found  sufficient  employment  in  defending 
his  own  territories  and  extending  his  jurisdiction  over 
those  of  his  neighbors.  He  had  neither  leisure  nor  incli- 
nation to  attend  to  the  cultivation  or  improvement  of  his 
land. 

Those  who  occupied  the  land  under  him  were  mere 
tenants  at  will.  They  were  almost  all  slaves.  They 
were  supposed  to  belong  more  directly  to  the  land  than 
to  their  master.  They  could  be  sold  with  it,  but  not  sep- 
arately. They  could  marry,  provided  it  was  with  their 
master's  consent  ;  and  he  could  not  afterwards  sell  the 
man  and  wife  to  different  persons.  If  he  maimed  or 
murdered  one  of  them,  he  was  liable  to  some  small  pecu- 
niarv  penalty.  But  they  were  not  capable  of  acquiring 
property.  All  that  they  acquired,  they  acquired  for  their 
master ;  he  could  take  it  from  them  at  pleasure.  If 
little  improvement,  then,  was  to  be  expected  from  the 
great  proprietors,  still  less  was  to  be  looked  for  from  the 
degraded  tenants. 

Such  was  the  condition  of  the  inhabitants  of  the  coun- 
try after  the  fall  of  the  Roman  Empire.  The  condition 
cf  the  inhabitants  of  the  towns  and  cities  was  not  much 
better. 

13 


194  COMMERCE. 

The  great  proprietors  of  land  generally  lived  in  forti- 
fied castles  on  their  own  estates,  in  the  midst  of  their  own 
tenants  and  dependents.  The  towns  were  chiefly  inhabited 
by  tradesmen  and  mechanics,  who  seem  to  have  been,  in 
those  days,  of  servile  or  nearly  servile  condition.  The 
privileges  granted  to  the  inhabitants  of  some  of  the  prin- 
cipal towns  in  Europe  by  ancient  charters  show  what  they 
were  before  these  grants.  It  was  granted  as  a  privilege 
that  they  might  give  away  their  own  daughters  in  marriage 
without  the  consent  of  their  lord  ;  that,  upon  their  death, 
their  own  children,  and  not  their  lord,  should  succeed  to 
their  goods  ;  and  that  they  might  dispose  of  their  own  ef- 
fects by  will.  They  seem  to  have  been  a  very  poor,  mean 
set  of  people,  who  used  to  travel  about  with  their  goods 
from  place  to  place,  and  from  fair  to  fair,  like  the  hawk- 
ers and  peddlers  of  the  present  day.  Taxes  were  levied 
upon  their  persons  and  goods  when  they  passed  through 
manors,  when  they  went  over  certain  bridges,  when  they 
carried  their  goods  from  place  to  place  in  a  fair,  when 
they  erected  a  booth  or  stall  therein.  These  taxes  were 
called  in  England  passage,  pontage,  lastage,  and  stallage. 

But  how  servile  soever  may  have  been  originally  the 
condition  of  the  inhabitants  of  the  towns,  they  arrived  at 
liberty  and  independence  much  earlier  than  the  occupiers 
of  land  in  the  country.  Sometimes  the  king,  sometimes 
a  great  lord,  would  grant  to  particular  traders  a  general 
exemption  from  their  taxes.  Such  traders  were,  upon 
this  account,  called  free  traders.  They,  in  return,  usu- 
ally paid  to  their  protector  a  sort  of  annual  poll-tax. 
These  taxes  and  these  exemptions  were,  at  first,  altogether 
personal,  and  affected  only  particular  individuals.  The 
part  of  the  king's  revenue  arising  from  poll-taxes  in  any 
particular  town  gradually  increased,  and  it  became  usual 
to  lann  it  out  for  a  certain  rent,  —  sometimes  to  the 
sheriff  of  the  county,  sometimes  to  other  persons.  The 


COMMERCE.  195 

burghers  themselves  frequently  got  credit  enough  to  be 
allowed  to  farm  the  revenues  of  this  sort,  arising  out  of 
their  own  town,  for  a  term  of  years.  In  process  of  time, 
however,  it  became  usual  to  farm  the  revenues  to  them  by 
way  of  a  grant  in  fee  ;  that  is,  forever  reserving  a  certain 
rent,  never  afterwards  to  be  augmented.  The  payments 
having  thus  become  perpetual,  the  exemptions  also  be- 
came perpetual,  and  ceased  to  be  personal.  They  were 
no  longer  considered  as  belonging  to  individuals  as  indi- 
viduals, but  as  burghers  of  a  particular  burgh,  which,  for 
this  reason,  was  called  "  a  freeburgh."  Along  with  this 
grant,  the  privileges  already  mentioned  were  generally 
bestowed  on  the  burghers  of  the  town,  who  thus  lost  the 
attributes  of  slavery  and  villanage,  and  really  became 
free.  They  were  also  generally,  at  the  same  time,  erected 
into  a  corporation,  with  the  privilege  of  having  magis- 
trates and  a  town  council  of  their  own,  of  making  by- 
laws for  their  own  government,  of  building  walls  for 
their  own  defense,  and  of  keeping  watch  and  ward. 
Corporations  of  this  kind  were  a  sort  of  independent  re- 
publics erected  in  the  midst  of  despotism. 

In  this  manner,  order  and  good  government  were  es- 
tablished in  towns  at  a  time  when  the  occupiers  of  land 
in  the  country  were  exposed  to  every  kind  of  violence. 

The  inhabitants  of  towns,  by  the  gradual  improvement 
of  their  own  manufactures,  and  by  importing  from  abroad 
the  improved  manufactures  and  expensive  luxuries  of 
richer  countries,  furnished  the  great  proprietors  of  land 
with  something  for  which  they  could  exchange  their  sur- 
plus produce.  By  affording  a  large  and  ready  market 
for  the  rude  produce  of  the  country,  they  encouraged  its 
cultivation  and  further  improvement.  The  wealth  ac- 
quired by  them  was,  not  unfrequeiitly,  employed  in  pur- 
chasing land,  of  which  a  great  part  was  uncultivated,  and 
they  became  the  best  of  all  improvers,  carrying  into  their 


196  COMMERCE. 

new  business  their  characteristic  boldness,  energy,  and 
spirit,  with  habits  of  order,  economy,  and  attention. 
Thus  the  manufactures  and  commerce  of  the  towns  con- 
tributed to  the  improvement  of  the  country,  and  gradu- 
ally introduced  among  its  inhabitants  the  like  order  and 
good  government  which  had  been  previously  established 
in  the  cities. 

Paley  says :  "  In  the  neighborhood  of  trading  towns, 
and  in  those  districts  which  carry  on  a  communication 
with  the  markets  of  '  trading  towns,'  the  husbandmen 
are  busy  and  skillful,  the  peasantry  laborious  ;  the  land  is 
managed  to  the  best  advantage,  and  double  the  quantity 
of  corn  or  herbage  (articles  which  are  ultimately  con- 
verted into  human  provision)  raised  from  it  of  what  the 
same  soil  yields  in  remoter  and  more  neglected  parts  of 
the  country.  Wherever  a  thriving  manufactory  finds 
means  to  establish  itself  a  new  vegetation  springs  up 
around  it.  Agriculture  never  arrives  at  any  considerable 
degree  of  perfection  when  it  is  not  connected  with  trade  ; 
that  is,  when  the  demand  for  the  produce  is  not  increased 
by  the  consumption  of  trading  cities.  " 

This  is  undoubtedly  true.  Agriculture  never  ap- 
proaches to  perfection  in  a  merely  agricultural  country. 
Knowledge  and  exertion  are  stagnant  in  such  a  country, 
because  the  stimulants  to  labor  and  the  means  of  enjoying 
life  to  the  utmost  are  wanting. 

An  able  and  thoroughly  informed  writer  on  political 
economy  remarked  some  sixty  years  ago:  If  we  turn  our 
eyes  to  Poland,  devoid  of  manufactures  and  commerce,  we 
shall  behold  a  picture  not  unlike  this  :  a  few  overgrown 
landholders  living  in  gross  and  barbarous  magnificence ; 
the  land  cultivated  by  an  ignorant  peasantry,  in  a  con- 
dition that  may  well  be  called  slavish,  where  the  produce 
often  rots  on  the  soil,  when  there-  are  no  means  of 
exporting  it  and  not  mouths  enough  to  consume  it !  The 


COMMERCE.  197 

agriculture  of  such  a  country  must  be  destitute  of  all 
spirited  improvement,  and  exertion  be  paralyzed  in  both 
master  and  slave. 

It  is  obvious  that  the  more  sources  of  wealth  there  are 
in  a  country,  the  more  means  of  enjoyment,  the  more  and 
greater  incentives  to  exertion  and  accumulation,  and  the 
more  varied  and  desirable  the  produce,  the  greater  will 
be  the  industry  and  wealth  of  the  country.  A  great 
stimulus  to  scientific  attainments  has  been  the  result  of 
manufactures.  The  great  sources  of  improvement  in  the 
comforts  and  enjoyments  of  life  have  been  manufactures 
and  commerce. 

The  inhabitants  of  the  richest  and  most  extensive 
country,  provided  it  were  divided  into  smaller  portions, 
without  any  intercourse  with  each  other  or  with  for- 
eigners, could  not  be  otherwise  than  poor  and  miserable. 
Without  such  intercourse,  without  commerce  or  the 
exchange  of  commodities,  every  man  would  be  obliged 
to  subsist  exclusively  upon  the  products  of  his  labor.  No 
one  could  devote  his  time  to  any  particular  pursuit.  The 
necessity  which  would  compel  him  to  turn  from  one 
employment  to  another  would  prevent  him  from  excelling 
in  any  species  of  work,  and  diminish  the  products  of  his 
labor.  There  would  be  no  distinction  of  employments 
and  professions  resulting  from  a  division  of  labor,  no  arts 
or  sciences  of  any  sort. 

By  means  of  commerce  every  individual  is  enabled  to 
avail  himself  to  the  utmost  of  the  peculiar  advantages  of 
his  place,  to  work  on  the  special  materials  with  which 
nature  has  furnished  him,  to  humor  his  genius  or  dispo- 
sition, to  betake  himself  to  the  task  in  which  he  is 
peculiarly  qualified  to  succeed.  The  inhabitant  of  the 
mountain  may  betake  himself  to  the  culture  of  his  woods 
and  the  manufacture  of  his  timber,  the  owner  of  the 
clay  pit  to  the  manufacture  of  his  pottery,  the  owner  of 


198  COMMERCE. 

pasture  lands  to  the  care  of  his  herds,  and  the  husband- 
man to  the  culture  of  his  fields  or  the  rearing  of  his 
cattle.  Any  one  commodity,  it  is  true,  would  form  but  a 
small  part  in  the  accommodations  of  human  life,  but  it 
may,  under  the  facilities  of  commerce,  be  exchanged  for 
what  will  procure  any  or  every  other  part.  Thus  genius 
is  stimulated,  industry  and  the  mechanic  arts  flourish,  and 
the  liberal  arts  themselves  are  refined. 

Man  was  created  not  only  to  inhabit  the  earth  as  the 
beasts  inhabit  it,  but  to  subdue  it,  and  to  exercise  through 
natural  laws  vast  power  over  all  the  elements  when  the 
energies  of  his  will  are  directed  by  wisdom,  and  when 
his  choice  of  methods  is  founded  upon  knowledge. 

There  be  three  things,  says  wise  Bacon,  which  make  a 
nation  great  and  prosperous,  —  a  fertile  soil,  busy  work- 
shops, and  easy  conveyance  of  men  and  things  from  one 
place  to  another.  Where  there  are  no  facilities  of  trans- 
port the  people  are  in  a  state  of  barbarism.  As  they 
emerge  from  this  condition,  their  commerce  is  at  first  car- 
ried on  in  the  rudest  manner.  Then  the  peddler  and  the 
pack-horse  are  seen  treading  the  pathways  along  the  beds 
of  streams,  avoiding  the  steep  hills  and  rugged  moun- 
tains which  a  direct  course  would  require  more  labor  to 
cross. 

The  work  of  improvement  slowly  progresses.  Com- 
merce, whose  increasing  benefits  are  felt  in  every  part 
and  territorial  division  of  the  state,  calls  for  further 
means  and  facilities  of  transporting  and  distributing  its 
various,  numerous,  and  important  materials.  To  enable 
the  inhabitants  of  large  towns  to  supply  themselves  with 
tli*'  bulky  products  of  the  soil,  new  roads  and  canals  are 
necessary  and  must  be  established,  intersecting  the  coun- 
try, and  opening  an  easy  access  to  its  remotest  extremi- 
ties. 

Koads.    o;ood     roads,    canals,     and     rivei-s    have     been 


COMMERCE.  199 

denominated  national  veins  and  arteries.  They  are 
essential  to  the  healthy  existence  and  strength  of  the 
state.  They  diminish  the  expense  and  increase  the 
speed  of  carriage  and  conveyance  of  products  from  place 
to  place,  and  so  enable  them  to  be  sooner  applied  to  the 
purposes  for  which  they  are  intended.  The  inhabitants 
of  the  town  are  in  this  way  supplied  with  the  bulky  prod- 
ucts of  the  country  almost  as  cheaply  as  if  they  lived  in 
country  villages ;  securing  them  the  advantages  of  con- 
centration, perfecting  the  division  of  labor,  and  supplying 
the  country  with  proportionally  cheap  manufactured 
goods,  conveyed  at  an  extremely  small  expense  to  its 
remotest  parts.  The  direct  advantages  of  good  roads  and 
canals  to  agriculture  are  equally  important  in  the  car- 
riage of  supplies  of  manure  and  other  heavy  articles,  to 
enrich  the  luxuriance  of  fertile  soils,  and  to  render  those 
that  are  poor  productive. 

Nothing  in  a  state  enjoying  great  facilities  of  commu- 
nication is  separate  and  unconnected.  All  is  mutual, 
reciprocal,  and  dependent.  At  length  the  civil  engineer 
appears  and  applies  his  art,  and  the  modern  road  is 
constructed.  Forests  are  felled,  hills  leveled,  valleys 
filled  up,  mountains  excavated,  marshes  drained,  chasms 
and  rivers  bestridden  with  bridges.  Through  the  solid 
rock  beneath  the  surface  of  the  earth,  under  the  beds  of 
great  rivers  on  whose  bosoms  navies  ride,  the  road  is 
carried  on.  The  triumph  of  science  is  complete.  The 
products  of  labor  are  conveyed  from  place  to  place  by 
the  railway  with  a  swiftness  outstripping  the  speed  of  the 
wind.  Knowledge,  intelligence,  the  product  of  thought, 
are  instantaneously  transmitted  across  the  ocean,  around 
the  world,  by  the  electric  telegraph,  which  literally 
annihilates  both  space  and  time. 

The  application  of  steam  to  the  transportation  of  per- 
sons and  goods  on  the  land  and  on  the  water,  to  the  navi- 


200  COMMERCE. 

gation  of  rivers,  internal  lakes,  and  the  ocean,  and  to 
railroad  purposes,  created  a  new  era  in  commerce,  and 
has  given  new  vigor  to  the  march  of  civilization. 

At  the  opening  of  the  Northern  Railroad  to  Grafton, 
N.  II.,  in  1847,  Mr.  Webster  happened  to  be  present,  and 
was  unexpectedly  and  in  the  most  enthusiastic  manner 
called  upon  to  address  a  large  number  of  persons  who 
were  there  to  witness  the  ceremonies  of  the  occasion. 
He  readily  complied  with  the  summons.  Among  other 
things,  he  said :  "  Fellow-citizens,  this  railroad  may  be 
said  to  bring  the  sea  to  your  doors.  You  cannot,  indeed, 
snuff  its  salt  water,  but  you  will  taste  its  best  products 
as  fresh  as  those  who  live  on  its  shores.  I  cannot  con- 
ceive of  any  policy  more  useful  to  the  great  mass  of  the 
community  than  the  policy  which  established  these  public 
improvements.  Let  me  say  that  in  the  history  of  human 
inventions  there  is  hardly  one  so  well  calculated  as  that 
of  railroads  to  equalize  the  condition  of  men.  The  rich- 
est must  travel  in  the  cars,  for  they  travel  fastest ;  the 
poorest  can  travel  in  the  cars,  while  they  could  not  travel 
otherwise,  because  this  mode  of  conveyance  costs  but 
little  time  and  money.  Probably  there  are  in  the  multi- 
tude before  me  those  who  have  friends  at  such  distances 
that  they  could  hardly  have  visited  them  had  not  railroads 
come  to  their  assistance  to  save  them  time  and  to  save 
them  expense.  Men  are  thus  brought  together  as  neigh- 
bors and  acquaintances  who  live  two  hundred  miles  apart.' 

The  easy  intercourse  of  men,  so  simply  and  plainly 
stated,  their  various  pursuits  and  occupations,  and  the 
pleasures  which  are  the  fruit  of  their  labor,  their  edu- 
cation, practical  skill,  and  experience,  especially  when 
enriched  with  science,  advancing  industry,  and  refinement 
in  the  mechanical  arts,  and  commonly  producing  some 
refinements  in  the  liberal,  all  join  in  rendering  the  in- 
tercourse of  persons  more  frequent,  easy,  familiar,  and 


COMMERCE.  201 

sociable.  They  love  to  talk  over  their  several  pursuits, 
skill,  and  improvements,  to  receive  and  communicate 
knowledge.  So  that,  as  Mr.  Hume  concludes,  besides 
the  improvements  which  they  receive  from  knowledge 
and  the  arts,  it  is  impossible  but  they  must  feel  an 
increase  of  humanity,  from  the  very  habit  of  conversing 
together  and  contributing  to  each  other's  pleasure  and 
entertainment.  Thus,  industry,  knowledge,  and  humanity 
are  linked  together  by  an  indissoluble  chain.  Profound 
ignorance  is  totally  banished,  and  men  enjoy  the  privilege 
of  rational  creatures  to  think  as  well  as  to  act,  to  cultivate 
the  pleasures  of  the  mind  as  well  as  those  of  the  body. 
The  same  age  which  produces  great  philosophers  and 
politicians,  renowned  generals  and  poets,  usually  abounds 
with  skillful  weavers  and  ship-carpenters. 

If  we  turn  to  foreign  trade,  and  consider  commerce  as 
the  interchange  of  the  products  of  industry  between 
different  countries  and  different  people,  we  behold  on  an 
extended  survey  the  benefits  which  are  conferred  by  a 
division  of  labor  on  all  the  countries  of  the  world. 

Providence  has  disseminated  its  blessings  among  the 
different  regions  of  the  world.  Each  country  produces 
some  peculiar  fruits  which  cannot  be  profitably  procured 
elsewhere.  Non  omnis  fort  omnia  tellus.  We  cannot 
acclimate  beneath  a  Southern  sky  the  productions  of  the 
North,  nor  under  a  Northern  sky  the  productions  of  the 
South. 

"  This  ground  with  Bacchus,  that  with  Ceres  suits  ; 
That  other  loads  the  trees  with  happy  fruits  ; 
A  fourth,  with  grass,  unbidden,  decks  the  ground." 

No  nation  is  abundantly  supplied  with  any  considerable 
variety  of  articles  of  domestic  growth,  or  is  content  to 
live  upon  the  productions  of  its  own  labor  and  its  own 
soil.  Nature  has  implanted  in  every  people  desires  for 
the  productions  of  other  soils  and  other  climates.  At  the 


202  COMMERCE. 

same  time  their  own  products  are  infinitely  more  in  quan- 
tity than  they  themselves  need.  By  means  of  mutTial 
intercourse  and  traffic,  nations  are  thus  enabled  mutually 
to  supply  one  another's  wants,  and  multiply  and  cheapen 
the  conveniences  and  enjoyments  of  life.  They  are  made 
in  some  sort  dependent  upon  one  another,  and  are  united 
together  by  their  common  interest. 

Observe  for  a  moment  how  many  of  our  comforts  and 
even  necessaries  are  derived  from  commerce  and  inter- 
course with  strangers.  The  ships  at  our  levee  are  laden 
with  the  harvest  of  every  clime ;  our  stores  are  furnished 
with  the  choicest  manufactures  of  foreign  artisans,  — 
silks,  cottons,  hardware,  porcelain,  jewelry,  laces  from 
Brussels,  Lyons,  Paris,  Geneva,  Sheffield,  Manchester, 
Liverpool,  London  :  our  tables  are  supplied  with  spices, 
oils,  wines  ;  China  furnishes  us  with  tea,  and  the  remot- 
est corners  of  the  earth  contribute  to  our  pleasures  or 
wants.  Addison's  pleasing  description  of  a  lady's  dress 
more  than  a  century  and  a  half  ago  continues  to  describe 
the  dress  of  the  present  day :  k'  The  single  dress  of  a 
woman  of  quality  is  often  the  product  of  an  hundred 
climes.  The  muff  and  the  fan  come  together  from  the 
different  ends  of  the  earth.  The  scarf  is  sent  from  the 
torrid  zone,  and  the  tippet  from  beneath  the  pole  :  the 
brocade  petticoat  rises  out  of  the  mines  of  Peru,  and 
the  diamond  necklace  out  of  the  bowels  of  Indostan." 
Mr.  McCulloch  states  that  the  people  of  Great  Britain 
owe  more  than  half  of  all  they  enjoy  to  their  intercourse 
with  others.  It  is  to  the  products  and  the  arts  derived 
from  others,  and  to  the  emulation  inspired  by  their  com- 
petition and  example,  that  we  are  mainly  indebted  for  the 
progress  we  have  made,  as  well  as  for  that  we  are  yet 
destined  to  make. 

It  is  certain  that  in  most  nations  foreign  commerce  has 
preceded  any  refinements   in  home  manufactures  or  such 


COMMERCE.  203 

as  were  fit  for  distant  sale.  It  supplies  men  with  new 
commodities,  and  awakens  new  desires  and  new  tastes. 
The  temptation  is  stronger  to  make  use  of  foreign  com- 
modities, which  are  entirely  new  to  us  and  ready  for  use, 
than  to  make  improvements  on  any  domestic  commodities, 
which  always  advance  by  slow  degrees,  and  never  affect 
us  by  their  novelty. 

The  profit  in  exporting  what  is  superfluous  at  home  to 
nations  abroad,  and  importing  foreign  commodities,  use- 
ful, pleasant,  novel,  improved,  refined,  is  great.  The 
trade  stimulates  domestic  industry,  improves  every  branch 
of  commerce,  of  agriculture,  and  of  manufactures,  and  stirs 
up  a  spirit  of  enterprise,  of  invention  and  competition 
in  making  us  acquainted  with  foreign  arts.  Imitation 
soon  diffuses  all  those  arts,  while  domestic  manufacturers 
emulate  the  foreign  in  their  improvements,  and  work  up 
every  home  commodity  to  the  utmost  perfection  of  which 
it  is  susceptible. 

But  foreign  commerce  imparts  not  merely  the  com- 
modities, but  with  them  the  knowledge,  experience,  and 
useful  practices  of  other  nations.  It  diffuses  knowledge, 
and  conveys  its  pleasures  and  the  blessings  of  civilization 
to  the  remotest  regions.  It  distributes  the  gifts  of 
science  and  art,  and  gives  to  each  particular  country  the 
means  of  profiting  by  the  inventions  and  discoveries  of 
others.  The  inventions  and  discoveries  of  Fulton  and 
Whitney,  of  Arkwright  the  cotton  spinner,  of  Watt  and 
Bolton  the  engineers,  of  Wedgwood  and  Bentley  the 
potters,  and  the  labors  and  speculations  of  Galileo,  Kepler, 
Lavoisier,  Laplace,  Newton,  Black,  and  others,  have  bene- 
fited all  nations. 

Everything  in  the  world  is  to  be  acquired  by  labor, 
and  labor  is  to  be  performed  by  natural  law  directed  and 
applied  by  reason  and  wisdom.  It  is  by  compelling 
nature  to  work  for  us  that  the  great  improvements  of 


204  COMMERCE. 

modern  times  in  manufactures  and  in  commerce  have 
been  made.  This  it  is  that  raises  us  so  much  above  the 
savage  state  of  society ;  that  makes  us  equal  to  the  most 
gigantic  efforts,  and  endows  us  with  almost  superhuman 
power.  We  have  put  in  requisition  the  powers  of  wind 
and  water,  of  heat  and  cold,  of  magnetism  and  electricity. 
We  have  made  the  planetary  system  subservient  to  our 
hourly  enjoyments,  and  we  are  proceeding  daily  in  the 
glorious  career  of  overcoming  the  obstacles  which  nature 
has  placed  in  the  path  of  our  wishes,  and  of  subjecting 
all  her  elements  to  our  control.  This  has  been  done 
by  mathematicians,  natural  philosophers,  chemists,  and 
mechanics,  rich,  beneficent,  ennobling,  and  enduring  gifts 
of  science. 

From  the  character  and  nature  of  commerce,  its  con- 
nection with  and  influence  upon  good  order,  faith,  and 
just  government,  and  its  diffusion  of  knowledge,  various 
materials,  comforts,  pleasures,  and  ornaments  of  life,  it 
must  ever  flourish  in  a  wise  and  free  government.  The 
spirit  of  commerce  is  congenial  with  liberty.  And  if  we 
trace  her,  in  her  progress  through  Tyre,  Athens,  Syra- 
cuse, Carthage,  Venice,  Florence,  Genoa,  Antwerp,  Hol- 
land, England,  the  United  States,  we  shall  always  find 
her  to  have  fixed  her  seat  in  free  governments. 

Milton,  great  poet  and  great  man,  speaks  of  "  the 
mountain  nymph,  sweet  Liberty."  From  her  lofty  seat 
she  looks  down  upon  and  visits  the  valleys,  the  plains, 
and  seashores,  imparting  knowledge,  truth,  courage,  enter- 
prise, wisdom,  love  of  law,  and  protection  of  equal  human 
rights.  A  distinguished  American  historian  says  :  "  Tlie 
seaboard  would  seem  to  be  the  natural  seat  of  liberty. 
There  is  something  in  the  very  presence,  in  the  atmos- 
phere of  the  ocean,  which  invigorates  not  only  the  physi- 
cal, but  the  moral  energies  of  man.  The  adventurous 
life  oi  the  mariner  familiarizes  with  dangers,  and  early 


COMMERCE.  205 

accustoms  him  to  independence.  Intercourse  with  various 
climes  opens  new  and  more  copious  sources  of  knowledge ; 
and  increased  wealth  brings  with  it  an  augmentation  of 
power  and  consequence.  It  was  in  the  maritime  cities 
scattered  along  the  Mediterranean  that  the  seeds  of  lib- 
erty, both  in  ancient  and  modern  times,  were  implanted 
and  brought  to  maturity." 

Foreign  trade  is  to  all  the  countries  of  the  world  what 
home  trade  is  to  the  different  portions  and  provinces 
of  the  same  country.  It  is  an  extension  of  the  benefits 
conferred  upon  man  by  a  division  of  labor.  As  individ- 
uals are  benefited  in  trade  and  riches,  and  the  several 
States  of  our  Union  are  rendered  happier  and  wiser,  more 
opulent,  refined,  and  powerful,  by  the  division  of  labor 
and  free  commerce  and  unrestricted  intercourse  one  with 
another,  so  our  imperial  republic,  controlling  our  for- 
eign relations  and  trade  under  its  national,  democratic, 
federal  government,  —  E  Pluribus  Unum,  —  increases  in 
power,  wealth,  and  happiness,  in  proportion  to  our  exten- 
sive commerce  and  varied  labor  in  manufactures  and 
agriculture,  inseparable  from  it.  The  same  train  of  con- 
sequences is  observable  in  the  world  at  large. 

The  Creator  gave  man  dominion  over  the  earth,  and 
over  the  sea,  and  over  the  air ;  to  master  them,  to  make 
them  minister  to  our  highest  power.  The  application  of 
science  to  the  arts  imparts  skill  and  strength,  intellectual 
and  moral  energy.  Mind  conquers  and  controls  matter. 
Every  natural  agent,  wind,  water,  gravity,  is  made  to 
work.  Machinery  performs  what  formerly  was  the  task 
of  human  hands. 

The  application  of  steam  to  commercial  purposes,  and 
the  transportation  of  goods  and  persons,  on  the  land  and 
on  the  water,  has  been  already  noticed.  The  newspaper 
press  informs  us  that  a  calculation  has  been  made  by 
some  foreign  arithmeticians  of  the  potent  agency  of  steam 


206  COMMERCE. 

in  the  world.  The  calculation  states  the  horse  power  of 
England  per  annum,  of  the  United  States,  of  Germany, 
of  France,  of  Austria,  exclusive  of  locomotive  power ; 
then  states  the  horse  power  of  the  locomotives  in  France, 
of  fixed  engines,  of  steamers,  etc.,  and  concludes :  "  The 
total  horse  power  of  all  the  machines  and  engines  worked 
by  steam  in  the  world  is  estimated  at  80,000,000.  Now 
each  horse  is  equal  to  ten  men,  so  that  the  whole  steam 
power  of  the  globe  represents  a  daily  working  power  of 
800,000,000  men.  Two  German  savants  reckoned  the 
population  of  the  globe  at  1,455,928,000,  and  the  number 
of  males  between  sixteen  and  sixty-five  at  about  one  third 
of  the  population,  making  the  total  of  men  of  working  age 
500,000,000.  As  steam  does  the  work  of  about  800,000,000 
men,  it  follows  that  the  power  of  laborers  and  resources 
of  industry  have  nearly  trebled  in  fifty  years,  since  the 
steam  engine  spread  its  beneficent  influence  over  all  civi- 
lized countries." 

It  may  not  be  superfluous  to  state  how,  under  the  power 
of  mind,  steam,  one  of  the  most  powerful  forces  of  nature, 
has  been  reduced  to  obedience  —  governed,  controlled, 
and  made  subservient  to  the  human  family  —  by  subject- 
ing its  invariable  energies  to  the  variable  conditions  of 
adjustment ;  blending  mental  and  material  laws,  and  in- 
timately connected  with  commerce,  home  and  foreign.  Mr. 
Webster  described  its  potent  agency  in  a  lecture  before 
the  Mechanics'  Institution,  in  1828  :  — 

"•  Everywhere  practicable,  everywhere  efficient,  it  has 
an  arm  a  thousand  times  stronger  than  that  of  Hercules, 
and  to  which  human  ingenuity  is  capable  of  fitting  a 
thousand  times  as  many  as  Briareus.  Steam  is  found  in 
triumphant  operation  on  the  seas,  — we  may  now  add  the 
oceans,  —  and,  under  the  influence  of  its  strong  propulsion, 
the  gallant  ship 


COMMERCE.  207 

'  Against  the  wind,  against  the  tide, 
Still  steadies,  with  an  upright  keel.' 

It  is  on  the  rivers,  it  is  on  highways  and  along  the 
courses  of  land  conveyance,  it  is  at  the  bottom  of  mines  a 
thousand  feet  below  the  earth's  surface,  it  is  in  the  mill 
and  in  the  workshops  of  the  trades.  It  rows,  it  pumps,  it 
excavates,  it  carries,  it  draws,  it  lifts,  it  hammers,  it  spins, 
it  weaves,  it  prints.  It  seems  to  say  to  men,  '  Leave  off 
your  manual  labor,  give  over  your  bodily  toil ;  bestow  but 
your  skill  and  reason  to  the  directing  of  my  power,  and  I 
will  bear  the  toil,  with  no  muscle  to  grow  weary,  no  nerve 
to  relax,  no  breast  to  feel  faintness.'  ' 

It  is  impossible  to  conjecture  to  what  further  uses  and 
improvements  in  mechanical  arts  and  operations  this  tre- 
mendous force  may  be  applied,  or  to  ascribe  any  limit  to 
its  progress. 

The  greatness  of  a  state  and  the  happiness  of  its  people 
are  inseparable  in  regard  to  commerce.  It  augments  the 
power  of  the  state  by  increasing  its  stock  of  labor,  as  well 
as  the  riches  and  happiness  of  individuals  by  increasing 
employment,  the  multitude  of  mechanic  arts  and  their 
products,  and  the  persons  who  are  employed  in  pro- 
ducing them  and  who  share  in  their  product.  It  stimu- 
lates industry  ;  it  imparts  and  diffuses  knowledge  and 
skill ;  it  supplies  new  objects  of  desire  and  materials  for 
labor  ;  it  leads  to  imitation,  skill,  rivalry,  improvement, 
social  intercourse,  refinement,  and  humanity :  it  gives  a 
lively  spirit,  healthy  activity,  strength,  and  energy  to  the 
mind. 

Mr.  Everett  truly  states  that  merchants  have  ever  been 
friends  of  learning  and  liberty,  and  enemies  of  tyranny 
and  despotism.  It  was  certainly  so  with  American  mer- 
chants during  our  revolutionary  struggle. 

In  the  dawn  of  civilization  alphabetical  writing  was 
used  among  the  Phoenician  merchants.  One  thousand 
years  after,  these  merchants  were  the  champions  of  liberty. 


208  COMMERCE. 

When  Alexander  carried  on  his  crusade  against  Asia, 
the  merchants  of  Tyre  detained  him  by  arms  longer  than 
Darius  could  with  all  the  armies  of  the  East. 

When,  in  succeeding  centuries,  the  Romans  were  march- 
ing to  universal  empire,  the  commercial  city,  Carthage, 
checked  their  progress. 

The  emancipation  of  Europe  from  the  iron  despotism 
of  the  barons,  under  the  feudal  system,  began  with  the 
privileges  granted  to  the  cities. 

The  colonization  of  our  country  sprang  mainly  from 
religion  and  commercial  adventure. 

The  British  navigation  act  was  the  foundation  of  co- 
lonial grievances.  The  colonists  complained  and  strug- 
gled against  the  monopoly  of  the  mother  country.  They 
saw  no  barriers  on  the  sea,  and  could  not  patiently  sub- 
mit to  artificial  restraints.  But  when  these  restraints 
were  removed,  commerce  went  forth,  like  an  uncaged 
eagle,  who  rushes  out  at  length  to  his  native  element, 
and  exults  as  he  bathes  his  undaxzled  eyes  in  the  midday 
sunbeam  or  pillows  his  breast  upon  the  storm.  Not 
content  with  the  broad  circuit  taken  by  the  trading  na- 
tions of  Europe,  the  commerce  of  America  penetrated 
not  only  the  remotest  haunts  of  European  trade, — the 
Mediterranean,  the  Baltic,  and  the  White  seas,  —  but  en- 
gaged in  the  trade  with  Ilindostan  and  China,  explored 
new  markets  on  islands  and  coasts,  before  unapproached 
by  modern  commerce,  and  opened  the  way  for  traffic  with 
Japan. 

A  word  or  two  more  in  regard  to  American  commerce. 

During  the  revolutionary  war  our  commerce  was  nearly 
annihilated  by  the  superior  naval  power  of  our  enemy, 
and  the  return  of  peace  enabled  foreign  nations,  and  espe- 
cially (ireat  Britain,  to  monopolize  our  home  trade.  The 
Articles  of  Confederation  conferred  no  power  on  the  con- 
federacy to  reu'ulate  commerce,  but  left  it  to  the  control 

•-  O 


COMMERCE.  209 

of  each  State  for  itself.  It  was  found  impossible  to  excite 
or  foster  enterprise  in  trade  under  the  influence  of  jarring 
state  regulations.  Thirteen  States,  each  with  power  to 
regulate  commerce,  and  each  looking  only  to  its  own 
interest !  A  navigation  act  passed  by  one  State  was  de- 
feated by  the  legislation  of  another.  Duties  were  levied 
in  one  State,  while  free  trade  was  adopted  in  another. 
We  were  thus  the  victims  of  our  own  imbecility,  and  re- 
duced to  a  subjection  to  the  commercial  regulations  of 
other  nations,  notwithstanding  our  boasted  freedom.  The 
country  was  losing  all  the  advantages  of  its  position. 
American  navigation  could  not  compete  with  foreign. 
Foreign  ships  had  free  admission  into  our  ports,  while 
American  ships  were  loaded  with  heavy  exactions  or  pro- 
hibitions abroad.  Foreign  supplies  flooded  the  country. 
The  national  industry  was  paralyzed,  and  the  Revolution 
itself  was  beginning  to  be  regarded  as  a  doubtful  blessing. 
Every  attempt  to  bring  the  state  legislatures  into  any  har- 
mony of  action  or  any  pursuit  of  a  common  object  had 
failed,  when,  in  1786,  Virginia  proposed  a  general  con- 
vention of  delegates  from  all  the  States,  "  to  consider  how 
far  a  uniform  system  of  commercial  regulations  may  be 
necessary  to  their  common  interest  and  permanent  har- 
mony." This  was  the  first  step  in  the  train  of  measures 
that  led  to  the  adoption  of  the  Constitution  of  the  United 
States. 

Other  objects  and  other  considerations,  besides  pressing 
commercial  necessity,  influenced  the  fathers  of  our  coun- 
try in  framing  that  Constitution.  The  confederacy  had 
made  itself  known  by  its  bitter  fruits  ;  it  was  a  failure,  — 
in  the  words  of  Mr.  Adams,  "  a  wretched  and  ignomini- 
ous failure."  The  Articles  of  Confederation  enumerated 
the  functions  of  a  national  government,  which  the  Con- 
gress instituted  by  the  instrument  was  not  authorized  to 
perform.  The  jealousy  of  delegated  power  pervaded 
14 


210  COMMERCE. 

every  part.  There  was  no  executive  power.  Congress 
was  authorized  to  make  war  and  conclude  peace,  to  con- 
tract debts  and  bind  the  nation  by  treaties  of  commerce, 
yet  the  Articles  of  Confederation  had  withheld  from  Con- 
gress the  power  of  regulating  the  commerce  of  the  Union 
and  levying  money  by  taxation  upon  the  people ;  they 
could  contract,  but  could  not  perform. 

The  revolutionary  debt  remained  unpaid,  the  national 
treasury  was  bankrupt,  the  country  was  destitute  of 
credit,  and,  to  defray  its  necessary  expenses  and  charges, 
the  only  power  of  Congress  was  to  issue  its  requisitions 
to  the  States,  which  they  neglected.  The  whole  govern- 
ment, therefore,  was  little  more  than  a  name,  incapable 
of  securing  and  protecting  the  interests  of  the  country, 
and  made  subservient  to  the  policy  of  foreign  nations. 

Such  was  the  painful,  feeble,  disgraceful  condition  of 
the  country,  when,  after  a  mature,  patriotic  deliberation, 
the  people  of  every  State  came  to  the  conclusion  that, 
for  the  rescue  of  their  character,  their  interest,  liberty, 
power,  and  dignity,  a  national  government  ought  to  be 
established.  Prudently  and  wisely  this  task  was  per- 
formed. 

The  framers  of  the  Constitution  of  the  United  States 
were  wise,  patriotic,  and  experienced.  They  were  great 
reformers,  and,  when  they  assembled  in  federal  conven- 
tion, deemed  it  a  solemn  duty  to  frame  an  efficient  plan 
of  government  for  the  United  States,  to  be  submitted  to 
the  people  of  the  States  for  their  mature  consideration  and 
judgment,  and  adoption  or  rejection. 

And  the  people  of  the  several  States  calmly  and  delib- 
erately set  aside  and  abolished  the  imbecile,  impotent  gov- 
ernment of  the  confederation,  and  adopted  the  Constitu- 
tion of  the  United  States.  The  Constitution  was  then 
promulgated  to  all  the  nations  of  the  earth  with  this  pre- 
amble or  proclamation  :  "  \Ve,  the  people  of  the  United 


COMMERCE.  211 

States,  in  order  to  form  a  more  perfect  union,  establish 
justice,  insure  domestic  tranquillity,  provide  for  the  com- 
mon defense,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity,  do  or- 
dain and  establish  this  Constitution  for  the  United  States 
of  America." 

The  organization  of  the  government  conformably  to  the 
Constitution  and  to  give  it  practical  operation  was  ef- 
fected in  1789,  under  the  administration  of  Washington. 
Life,  vigor,  power,  and  new  character  were  at  once  im- 
parted to  it.  Congress  proceeded  to  exercise  the  powers 
conferred  upon  it.  A  comprehensive  system  of  revenue 
was  adopted ;  taxes,  imposts,  and  duties  were  laid  and 
collected  by  the  government  without  any  requisition  on 
the  States  ;  provision  was  made  to  pay  the  public  debt 
and  provide  for  the  general  welfare  ;  the  foreign  commerce 
was  wisely  regulated,  the  interests  of  the  country  were 
duly  protected,  and  its  other  foreign  relations  were  con- 
sidered and  treated  with  ability,  with  dignity,  with  a  be- 
coming spirit,  —  the  spirit  of  nationality,  the  nationality 
of  America.  The  laws  of  the  United  States  were  executed 
and  carried  into  effect  in  every  part  of  the  Union. 

In  regard  to  commerce,  the  main  subject  of  this  dis- 
quisition, the  Constitution  ordains  :  "  The  Congress  shall 
have  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes." 
The  grant  is  plenary  and  exclusive  ;  it  embraces  the  whole 
and  each  and  every  part  of  the  country,  and  the  whole 
and  each  and  every  subject  of  commerce.  The  power  is 
vital  to  the  Union.  It  put  an  end  to  the  serious  dissen- 
sion among  the  States  themselves,  and  to  the  irritation  and 
jealousy  caused  by  the  difference  of  their  regulations.  It 
established  a  uniform  system,  and  harmony,  and  coopera- 
tion for  the  general  welfare  ;  one  rule,  one  commercial 
law  and  regulation  among  the  States  that  stand  upon  the 


212  COMMERCE. 

territory  of  this  grand  republic,  annihilating  the  causes  of 
domestic  feuds  and  rivalries,  compelling  every  State  to 
regard  the  interest  of  each  as  the  interest  of  all,  and  dif- 
fusing over  all  the  benefits  and  blessings  of  a  free  and 
rapid  exchange  of  commodities  upon  the  footing  of  perfect 
equality. 

In  nothing  has  the  Constitution  displayed  more  pro- 
found wisdom  than  in  the  grant  of  this  power.  It  served 
to  consolidate  the  Union  and  render  it  more  perfect.  It 
gave  to  our  commerce  in  every  foreign  market  an  American 
national  name  and  influence.  As  we  were  one  people  in 
making  war  and  one  people  in  making  peace,  so  were  we 
one  in  regulating  commerce.  It  enabled  the  government 
to  place  the  United  States  upon  a  just  and  rightful  equality 
with  foreign  nations,  to  compel  them  to  abandon  their 
unjust  and  selfish  policy,  and  to  protect  our  commercial 
interests  against  their  injurious  competitions. 

It  seems  to  be  agreed  among  all  enlightened  men  that 

o  o  o 

the  effects  produced  by  commerce  are  national  wealth, 
circulation  of  capital,  augmentation  of  the  public  revenues, 
of  the  general  ease,  comfort,  and  prosperity  of  the  people, 
and  of  the  power  of  the  state. 

England  furnishes  an  illustrious  example  of  this,  and 
our  national  progress  confirms  it.  Statisticians,  states- 
men, historians,  orators,  philosophers,  have  contrasted  the 
feeble  and  disheartening  condition  of  our  forefathers  un- 
der the  government  of  the  confederacy,  with  its  ill-regu- 
lated and  defective  system,  which  withheld  from  Congress 
the  power  to  regulate  commerce,  and  our  present  condi- 
tion under  the  government  as  it  has  been  formed  and 
modified  by  the  Constitution  of  the  United  States. 

They  observe  the  vast  extent  to  which  our  country  has 
extended  herself,  stretching  from  the  British  possessions, 
the  waters  of  the  St.  Lawrence,  and  the  great  lakes  of  the 
continent  to  Mexico  and  the  waters  of  the  Itio  Grande, 


COMMERCE.  213 

and  from  the  Atlantic  Ocean  to  the  Pacific  Ocean,  —  the 
thirty-eight  sovereign  States,  the  Territories,  and  the  pub- 
lic land.  They  observe  her  rapid  and  steady  progress  in 
all  the  arts,  mechanic,  useful,  refined ;  in  science,  and  its 
agency  and  application  to  the  wants,  the  comforts,  the 
pleasures,  the  refinements,  and  pure  enjoyments  of  human 
life.  They  point  out  her  highways,  roads,  canals  ;  the 
network  of  railroads  and  telegraphic  lines  by  which  the 
country  is  reticulated,  developing  her  resources,  and  unit- 
ing emphatically,  in  metallic  bands,  all  parts  of  the  Union  ; 
her  seacoast  towns ;  her  harbors  and  ports  and  light- 
houses ;  the  paths  of  her  commerce,  wide  as  the  world,  on 
the  great  seas,  and  her  navy,  which  takes  no  law  from 
superior  force ;  the  glory  and  the  name  of  the  great  re- 
public, the  great  example  of  popular  government,  of  free- 
dom and  industry,  of  justice  and  equality,  —  stimulating 
and  quickening  the  spirit  and  energy  of  its  active,  enter- 
prising, adventurous,  and  w^ll-informed  citizens  to  emu- 
late the  virtues  and  actions  of  their  ancestors,  who  es- 
tablished public  liberty  in  America,  to  the  safety,  honor, 
and  welfare  of  the  country. 


ADDIiESS  TO   LAW   STUDENTS. 

[Delivered  in  1877  to  the  graduating  class  of  law  students 
by  Mr.  Hunt  as  president  of  the  University  of  Louisiana.] 

GENTLEMEN,  —  In  pursuance  of  the  duty  assigned  me 
as  President  of  the  University  of  Louisiana,  under  the 
Constitution  and  laws  of  the  State,  I  do  now  publicly 
confer  upon  each  of  you  here  presented  by  the  Dean  and 
Faculty  of  the  law  department,  with  the  approval  of  the 
administrators  of  the  University,  therefore,  the  degree  of 
Bachelor  of  Laws,  with  all  the  rights,  honors,  dignities, 
and  privileges  appertaining  to  that  degree. 

Diplomas,  written  evidence  of  the  degree  conferred, 
are  in  the  hands  of  the  Dean,  and  will  be  delivered  to 
those  entitled  to  them. 

Circumstances  unhappily  preventing  the  learned  Dean 
of  the  Faculty  from  delivering,  according  to  appointment, 
the  usual  appropriate  address  on  the  graduation  of  the 
class,  at  his  desire  and  on  your  request  I  have  undertaken 
to  perform  the  duty  on  this  occasion,  and  must  ask  your 
indulgence,  your  kind  consideration  and  judgment,  for  the 
plain  discourse  you  are  about  to  hear. 

Gentlemen  graduates,  you  have  completed  the  course 
of  your  collegiate  studies,  and  are  about  to  enter  upon 
the  active  business  of  life,  to  exert  your  powers  and  vir- 
tues, and  to  convert  to  private  and  public  use  the  learning 
and  ability  which  you  have  acquired  in  the  law  school  of 
the  University.  You  are  just  going  forth  to  attempt  the 
practice  of  law,  to  do  its  hard  work,  to  kindle  with  its 
excitations,  to  be  agitated  by  its  responsibilities,  to  sound 


ADDRESS   TO   LAW   STUDENTS.  215 

its  depths  and  shoals  of  honor.  Some  of  you  may  be 
exposed  to  difficulties.  Determine  to  surmount  them  with 
courage,  or  to  bear  them  with  resignation.  Be  prudent, 
industrious,  and  ever  instant  in  the  pursuit  of  knowledge. 

In  discharging  the  official  duty  of  addressing  you,  I  am 
moved  by  a  solicitude  for  your  personal  welfare,  and  a 
regard  for  the  profession  and  divine  nature  of  law. 

Whatever  progress  you  have  made  in  jurisprudence, 
you  must  be  sensible  that  if,  relying  on  your  present 
attainments,  you  abandon  study,  you  can  never  become 
distinguished.  If  you  aspire  to  respectability  and  to 
eminence,  you  must  labor  long  and  hard,  cheerfully  and 
heartily.  Labor  is  the  condition  of  success  and  greatness. 
It  is  a  fine  remark  of  Chancellor  Kent  that  "  it  appears 
to  be  the  general  order  of  Providence  manifested  in  the 
constitution  of  our  nature  that  everything  valuable  in 
human  acquisition  should  be  the  result  of  toil  and  labor." 

Nor  should  this  truth  discourage  you.  Labor  vincit 
omnia.  And  labor  is  in  itself  agreeable  to  the  well- 
organized  mind,  anxious  for  improvement  and  rejoicing  in 
its  progress.  At  this  day,  no  mere  force  of  genius  how- 
ever extraordinary,  no  combination  of  natural  faculties 
however  rare  and  exquisite,  no  general  information  how- 
ever vast  and  extensive,  unaccompanied  with  a  profound 
knowledge  of  jurisprudence  and  of  the  peculiar  system  of 
laws  in  a  commonwealth,  can  constitute  an  efficient  practi- 
cal lawyer.  The  progress  you  have  already  made  in  the 
law  must  convince  you  of  this,  while  that  very  progress 
gives  assurance  of  success  to  the  persevering  student. 

But  you  should  by  no  means  neglect  the  general  culture 
of  letters  and  of  the  arts  and  sciences,  merely  because 
your  labors  are  to  be  chiefly  devoted  to  the  law.  The 
different  branches  of  learning  bear  an  intimate  relation 
to  one  another.  Consider  for  a  moment  what  a  lawyer 
must  know  and  what  he  has  to  do  if  he  be  in  good  practice. 


216  ADDRESS   TO   LAW   STUDENTS. 

He  must  be  more  or  less  acquainted  with  the  mechanical 
arts  and  sciences,  with  modern  inventions  and  discoveries, 
with  the  details  of  trade,  commerce,  and  manufactures. 
He  must  put  himself  in  the  way  of  all  the  liberal  opinions 
which  modern  investigation  has  brought  into  view.  He 
must  trace  the  laws  from  the  first  rough  sketches  to  the 
more  perfect  draughts,  from  the  causes  that  produced 
them  through  all  the  effects,  good  and  bad,  that  they 
produced. 

The  perfect  lawyer  should  be  familiar  with  every  study. 
He  must  pry  into  the  secret  recesses  of  the  human  heart, 
and  explore  to  their  sources  the  passions  and  appetites 
and  feelings  of  mankind,  lie  should  watch  the  motions 
of  the  dark  and  malignant  passions  as  they  silently 
approach  the  chambers  of  the  soul  in  its  first  slumbers. 
He  should  catch  the  first  warm  rays  of  sympathy  and 
benevolence  as  they  play  around  the  character.  lie 
should  unlock  the  treasures  of  history  for  instruction  and 
admonition,  lie  must  drink  in  the  lessons  and  the  spirit 
of  philosophy,  which  is  conversant  with  men's  business 
and  interests  :  which  dwells,  says  Story,  not  in  vain  ima- 
ginations and  platonic  dreams,  but  which  stoops  to  life, 
and  enlarges  the  boundaries  of  human  happiness,  sits  by 
us  in  the  closet,  cheers  us  by  the  fireside,  walks  witli  us 
in  the  fields  and  highways,  kneels  with  us  at  the  altar, 
and  lights  up  the  enduring  flame  of  patriotism. 

The  morals  of  the  law  arc  pure  and  just.  No  men  are 
so  constantly  called  upon  in  their  practice  to  exemplify 
the  duties  of  good  faith,  strict  integrity,  and  ehivalric 
honor  as  lawyers.  To  them  is  often  entrusted  the  pro- 
tection of  the  peace  and  comfort  as  well  as  the  property 
of  whole  families,  of  personal  rights  and  personal  charac- 
ter, of  domestic  harmony  and  parental  authority,  or  it 
may  bu  the  vindication  of  innocence  against  private  in- 
justice. Rank  and  wealth  and  patronage1  may  be  on  one 


ADDRESS   TO   LAW   STUDENTS.  217 

side,  and  poverty  and  distress  on  the  other.  The  op- 
pressor may  belong  to  the  very  circle  of  society  in  which 
they  love  to  move,  and  where  many  seductive  influences 
may  be  employed  to  win  their  silence.  Some  crafty  pre- 
text, some  captivating  delusion,  may  mask  the  real  design 
of  the  oppressor.  The  press  may  be  employed  to  poison 
public  opinion,  and  to  intimidate  the  sufferer  who  resorts 
to  a  court,  the  citadel  of  public  justice,  the  true  guardian 
in  all  governments,  and,  especially  in  free  governments, 
of  the  whole  community.  He  calls  upon  his  advocate,  the 
lawyer,  to  maintain  the  supremacy  of  the  law  against 
power  and  wealth,  to  vindicate  his  rights,  to  require  dam- 
ages, as  the  case  may  be,  from  the  violator  of  his  domes- 
tic peace,  or  to  expose  to  scorn  the  subtle  contrivances  of 
fraud.  In  such  cases,  the  attempt  to  unravel  the  fraud 
and  expose  the  injury  may  be  full  of  delicacy,  and  may 
incur  severe  displeasure  among  friends.  But  it  is  on 
such  occasions  the  advocate  rises  to  the  dignity  and  the 
great  moral  obligations  of  his  profession.  It  may  be  that 
his  profession  calls  him  to  different  duties.  He  may  be 
required  to  defend  against  the  arm  of  the  government 
a  party  standing  charged  with  some  odious  crime,  real 
or  imaginary.  lie  is  not  at  liberty  to  desert  even  the 
guilty  wretch  in  his  lowest  estate,  but  he  is  to  take  care 
that  even  here  the  law  shall  not  be  broken  or  bent  to 
bring  him  to  punishment.  He  will  at  such  times,  from  a 
sense  of  professional  duty  as  well  as  from  compassion, 
freely  give  his  talents  to  the  cause,  and  never  surrender 
the  victim  until  the  judgment  of  his  peers  has  convicted 
him  upon  legal  evidence. 

Bear  this  in  mind :  when  once  you  undertake  the  cause 
of  a  client,  you  make  it  your  own,  and  it  becomes  entitled 
to  the  same  attention  and  earnest  interest  which  you  give 
to  your  own  affairs.  Nay,  you  are  bound  to  protect  that 
client  at  all  hazards  and  costs  even  to  yourselves.  I 


218  ADDRESS   TO   LAW   STUDENTS. 

will  not  say  that  you  are  to  have  no  scruples  about  any 
act  whatever  that  may  benefit  your  client,  for  such  a  rule 
would  overturn  all  morals.  Nor  will  I  say  that  you  should 
separate  the  duties  of  a  patriot  from  those  of  an  advo- 
cate. The  administration  of  justice  is  the  great  end  of 
human  society,  and  justice  the  great  end  of  law,  sovereign 
law,  which, 

"  O'er  thrones  and  globes  elate, 
Sets  empress,  crowning  good,  repressing  ill." 

I  repeat,  the  law  is  the  only  recognized  sovereign  of  free- 
men. Upon  her  supreme  and  steady  rule  depends  the 
secure  enjoyment  of  life,  of  liberty  and  property.  It  is 
the  remark  of  a  wise,  learned,  and  philosophic  jurist  and 
statesman  that  in  all  the  elaborate  policy  by  which  free 
states  have  sought  to  preserve  themselves,  there  is  none  so 
sure,  so  indispensable,  as  justice,  justice  to  all :  justice  to 
foreign  nations  of  whatever  class  of  greatness  or  weak- 
ness, to  public  creditors,  alien  or  native  ;  justice  to  every 
individual  citizen,  down  to  the  feeblest  and  the  least 
beloved ;  justice  in  the  assignment  of  political  and  civil 
rights ;  justice  between  man  and  man,  every  man  and  every 
other.  To  observe  and  to  administer  this  virtue  steadily, 
uniformly,  and  at  whatever  cost,  this,  the  best  policy  and 
the  final  course  of  all  governments,  is  preeminently  the 
policy  of  free  governments.  It  is  the  true  interest,  the 
best,  the  only  policy,  and  the  highest  glory  of  a  country. 

Mr.  Choate,  an  eminent  lawyer  of  Massachusetts,  de- 
clared :  "  In  all  political  systems  and  in  all  times,  the 
profession  has  seemed  to  possess  a  twofold  nature,  to  be 
fired  by  the  spirit  of  liberty,  and  yet  to  hold  fast  the 
sentiments  of  order  and  reverence,  and  the  duty  of  sub- 
ordination. It  has  recognized  and  vindicated  the  rights 
of  man.  and  yet  has  reckoned  it  always  among  the 
most  precious  of  those  rights  to  be  shielded  and  led  by 
the  divine  nature  and  the  immortal  reason  of  law." 


ADDRESS   TO   LAW   STUDENTS.  219 

The  love  of  liberty  and  the  love  of  law  characterized 
the  wise  and  illustrious  fathers  of  our  country ;  and  lib- 
erty and  law,  intimately  united,  were  made  the  basis  of 
justice  and  American  government.  The  profession  of 
law,  useful,  honorable,  and  distinguished,  is,  undoubtedly, 
the  great  ornament  and  one  of  the  defenses  and  securities 
of  free  institutions,  indispensable  to  and  conservative  of 
public  liberty.  Without  liberty,  law  loses  its  nature  and 
its  name,  and  becomes  oppression.  Without  law,  liberty 
also  loses  its  nature,  and  becomes  licentiousness.  Locke 
says,  "  Where  there  is  no  law,  there  is  no  freedom."  And 
Lord  Chatham,  after  his  fashion,  declared,  "This  I  know  : 
where  law  ends,  tyranny  begins." 

The  rightful  end  of  all  civil  government  is  to  secure 
freedom.  Its  highest  office  is  to  watch  over  the  liberties 
of  each  and  all.  Its  very  chains  and  prisons  have  the 
general  freedom  for  their  aim  ;  they  are  just  only  when 
used  to  curb  oppression  and  wrong,  to  disarm  him  who 
wars  against  others'  rights,  who,  by  invading  property  or 
life,  would  substitute  force  for  the  reign  of  equal  laws. 
Checks  on  licentiousness  that  would  trespass  on  right, 
wholesome  restraints  on  others  to  keep  off  from  us,  the 
checks  and  restraints  on  legislative,  executive,  and  judicial 
powers  in  our  American  system  of  government,  are  safe- 
guards of  individual  rights,  a  bulwark,  fortress,  security 
of  public  libei'ty- 
In  all  the  past  period  of  our  history,  the  lawyers  of  the 
country  have  been  conspicuous  for  an  ardent  spirit  of 
liberty,  inflexible  adherence  to  principle,  intrepidity,  and 
knowledge  of  their  rights.  Many  of  those  who  stirred 
up  and  made  the  people  ready  for  revolution  were  lawyers. 
They  argued,  they  refined,  distinguished,  explained  about 
their  rights,  and  were  prepared  to  maintain  them  with 
unflinching  courage.  They  were  foremost  in  vindicating 
the  true  interpretation  of  the  charters  of  the  colonies,  and 


220  ADDRESS   TO    LAW   STUDENTS. 

in  exposing  the  infringements  which  led  to  the  Stamp  Aft 
and  tea  tax,  and  to  the  Revolution  and  our  national  in- 
dependence. "A  love  of  freedom,"  said  Mr.  Burke  in 
1775,  "  is  the  predominating  feature  in  the  character  of 
the  Americans.  And  this  is  to  be  attributed,  in  no  mean 
degree,  to  their  education.  In  no  country,  perhaps,  in  the 
world  is  the  law  so  general  a  study  .  .  .  dbciint  xtudia 
in  more*.  .  .  .  In  other  countries,  the  people,  more  simple 
and  of  a  less  mercurial  cast,  judge  of  an  ill  principle  in 
government  only  by  an  actual  grievance  ;  here  they  anti- 
cipate the  evil  and  judge  of  the  grievance  by  the  badness 
of  the  principle.  They  augur  misgovernment  at  a  dis- 
tance, and  snuff  the  approach  of  tyranny  in  every  tainted 
breeze." 

So  it  was  ;  and  it  has  been  claimed,  truly  and  justly 
claimed,  that  in  the  following  time  the  American  bar,  — 
springing  into  existence  by  revolution,  and  justifying  that 
revolution  only  on  a  principle  of  natural  law,  —  by  its 
professional  appreciation  of  order,  obedience,  restraint, 
its  free  and  lofty  spirit,  its  profound  and  wide  intimacy 
with  all  liberty,  and,  above  all,  English  liberty,  displayed 
the  wisdom  of  statesmen  in  framing  a  constitution  for 
the  United  States,  and  completing  the  revolution  with  an 
original  system  of  government,  free  republican  govern- 
ment, and  a  grand  written  code  of  public  laws,  approved, 
ordained,  and  established  by  the  free  people  of  the  several 
States. 

I  do  but  repeat  what  has  been  often  and  commonly 
remarked,  and  is  undoubtedly  true,  when  I  say  our  sys- 
tem of  government  is  peculiar  and  complicated.  It  is 
original  in  its  character,  truly  and  emphatically  our  own, 
American,  without  example  or  parallel.  We  have  state 
sovereignties,  each  exercising  legislative,  executive,  and 
judicial  powers,  and  all  standing  on  an  equal  footing, 
and  we  have  a  general  government,  under  which  all  these 


ADDRESS   TO   LAW   STUDENTS.  221 

States  are  united  ;  and  it  is  the  very  beauty  of  our  sys- 
tem that  the  federal  and  the  state  governments  are  thus 
kept  distinct.  The  people  of  each  State  formed  the  Con- 
stitution of  the  State.  The  people  of  the  United  States 
ordained  and  established  the  Constitution  of  the  United 
States.  Mr.  Webster  said  he  defied  the  wit  of  man  to 
devise  anything  preferable,  and  anything  more  suitable 
on  the  whole  for  the  great  interests  of  a  great  people 
spread  over  a  large  portion  of  the  globe,  than  the  provi- 
sion of  local  legislation  for  local  and  municipal  purposes, 
with  a  general  government  for  general  purposes.  The 
States  are  united, 

"  Not  chaos  like,  together  crushed  and  bruised, 
But,  like  the  world,  harmoniously  confused  : 
Where  order  in  variety  we  see, 
And  where,  though  all  things  differ,  all  agree." 

In  constructing  the  American  Constitution,  with  the  rec- 
onciliation of  imiversal  liberty  with  the  philosophy  of 
government,  the  distribution  of  its  powers  into  separate 
departments,  the  checks  and  balances  necessary  to  make 
it  a  government  of  laws,  and  not  of  men  :  in  recognizing  the 
right  of  the  people  to  make  all  the  laws  and  to  make  the 
Constitution,  and  the  wisdom  of  the  people  in  restraining 
themselves  from  the  disorderly  exercise  of  power  by  the 
supremacy  of  the  Constitution  while  it  exists,  and  by 
the  establishment  of  a  fundamental  organic  rule  to  test 
the  legislation  of  the  day  by  the  standard  of  truth  and 
time,  the  lawyers  and  other  wise,  experienced,  and  patri- 
otic men  united  and  cooperated  to  secure  the  blessings 
of  liberty  and  establish  justice. 

The  Articles  of  Confederation,  a  mere  compact  of  state 
governments,  had  proved  a  miserable  failure.  The  fed- 
eral Constitution  was  framed  and  a  united  government  was 
established,  with  power  to  act  on  the  individual  citizen, 


222  ADDRESS   TO   LAW   STUDENTS. 

by  the  concurrent  vote  of  Congress,  the  States,  and  the 
people.  The  separate  state  governments  remained  un- 
impaired for  all  the  purposes  of  purely  local  administra- 
tion, the  people  of  the  several  States  forming  the  people 
of  the  Union  ;  and  the  Constitution  of  the  United  States, 
and  the  laws  made  in  pursuance  thereof,  are  declared  to 
be  the  supreme  law  of  the  land,  anything  in  the  Constitu- 
tion or  laws  of  any  State  notwithstanding. 

It  is  this  system  of  government  and  these  political 
principles,  reconciling  the  strength  of  a  great  with  the 
freedom  of  a  small  State,  that  form  what  has  been  called 
"  a  decentralized  republican  empire/'  The  working  of  the 
system  appears  from  the  changes  that  have  been  wrought 
in  the  condition  and  prospects  of  the  American  people. 
On  the  30th  of  April,  1789,  the  chancellor  of  the  State  of 
New  York,  from  the  balcony  of  the  City  Hall,  adminis- 
tered to  George  Washington  the  solemn  oath,  "  faithfully 
to  execute  the  office  of  President  of  the  United  States, 
and,  to  the  best  of  his  ability,  to  preserve,  protect,  and 
defend  the  Constitution  of  the  United  States.'' 

His  administration  fixed  the  character  of  the  Constitu- 
tion as  a  practical  system  of  government,  and  settled  upon 
firm  foundations  the  execution  of  the  Constitution  and 
laws.  He  laid  the  corner-stone  of  the  original  Capitol 
on  the  18th  day  of  September,  1793.  He  was  then  at  the 
head  of  the  government,  which  at  that  time  was  weak  in 
resources,  burdened  with  debt,  just  struggling  into  polit- 
ical existence  and  respectability,  and  agitated  by  the 
heaving  waves  which  were  overturning  European  thrones. 
On  the  4th  of  July,  1851,  Millard  Fillmore,  President 
of  the  United  States,  laid  the  corner-stone  of  the  addition 
to  the  Capitol,  and  Daniel  Webster,  Secretary  of  State  of 
the  lTnited  States,  at  his  request,  delivered  an  address  to 
the  people  assembled  to  witness  the  ceremony,  —  wise  and 
patriotic,  describing  a  degree  of  national  progress  with 
which  the  world  can  furnish  no  parallel. 


ADDRESS  TO   LAW   STUDENTS.  223 

It  is  impossible  to  review  the  course  of  that  progress  to 
the  year  1876  without  wonder  and  amazement  at  every 
step.  See  the  vast  area  of  territory  to  which  our  country 
has  expanded  herself  ;  her  advance  in  science,  and  its 
application  to  the  useful  arts,  in  commerce,  manufactures, 
and  development  of  resources ;  in  justly  acquiring  the 
name  of  the  great  republic,  demanding  nothing  wrong 
and  submitting  to  nothing  wrong  in  her  intercourse  with 
foreign  nations,  and  dispensing  justice  according  to  the 
Constitution  and  laws  of  the  land  at  home. 

Gentlemen,  it  is  the  duty  of  the  present  American 
bar  to  aid  in  the  interpretation  of  these  Constitutions, 
state  and  federal  :  to  ascertain  their  true  construction, 
the  powers  vested  in  the  state  governments  by  their  re- 
spective state  Constitutions,  or  remaining  in  their  people, 
and  to  administer  and  maintain  them  ;  to  interpret,  ad- 
minister, and  maintain  the  Constitution  of  the  United 
States  in  the  plenary  grant  of  its  specific  powers,  given 
expressly  or  by  necessary  implication  to  the  government 
of  the  United  States,  which  the  people  have  made  the 
supreme  law  of  the  land.  In  the  performance  of  these 
duties  the  profession  is  raised  to  a  function  by  which  the 
republic  may  be  saved. 

I  desire  to  impress  upon  you  the  value  of  storing  your 
minds  with  the  learning  of  former  ages.  Some  know- 
ledge of  the  ancient  languages  is  essential  to  the  civil 
lawyer.  A  great  English  jurist  remarks  :  "  You  can 
scarce  find  an  eminent  man  in  modern  times  who  has  not 
formed  his  genius  and  improved  his  taste  and  talents 
for  executing  works  of  immortal  renown  by  a  thorough 
study  of  the  Greek  and  Roman  classics.''  Not  that  their 
ideas  are  more  just  or  that  their  learning  is  more  pro- 
found than  those  of  many  moderns,  but  because  from 
their  writings  you  will  imbibe  the  spirit  of  true  genius 
and  liberty,  and  habituate  yourselves  to  their  copiousness 


224  ADDRESS   TO   LAW   STUDENTS. 

and  elegance.  The  speeches  of  Demosthenes  are  models 
of  eloquence,  and  kindle  within  us  the  fire  of  ancient 
times  and  of  liberty.  I  need  not  urge  you  to  cultivate 
this  noble  art  of  persuasion.  The  just  estimation  of  elo- 
quence depends  upon  the  virtuous  and  rational  use  made 
of  it.  "  In  peaceful  times,"  said  the  Roman  orator,  "  she 
flourishes,  protectress  of  liberty,  patroness  of  improve- 
ment, guardian  of  all  the  blessings  that  can  be  showered 
upon  the  mass  of  humankind.  Nor  is  her  form  ever 
seen  but  on  grounds  consecrated  to  free  institutions." 
But  no  splendor  of  talents,  no  perfection  in  art,  can  com- 
pensate for  the  want  of  moral  principle.  Personal  virtue 
is  the  foundation  of  all  real  worth,  of  true  dignity  of 
character,  of  genuine  piety,  and  of  the  most  extensive 
usefulness.  No  man  wholly  destitute  of  moral  principle 
can  ever  be  a  great  lawyer.  It  is  almost  impossible  to 
separate  the  impression  made  by  the  character  of  a  speaker 
from  the  things  he  says.  An  opinion  of  honor  and  probity 
in  the  person  who  undertakes  to  persuade  adds  to  the 
influence  of  his  speech  :  a  contrary  opinion  detracts  from 
its  authority. 

In  the  practice  of  your  profession,  gentlemen,  you 
should  eschew  and  discountenance  all  chicanery,  all  petty 
and  vexatious  quibbles  and  artifices.  Such  things  are  a 
reproach  to  public  justice,  and  never  fail  to  bring  those 
who  resort  to  them  into  contempt  and  odium. 

Be  frank  and  honorable,  the  avowed  advocates  of  truth 
and  justice.  Never  violate  them  yourselves,  and  never 
advise  others  to  violate  them.  In  your  intercourse  with 
your  brethren  of  the  bar,  you  should  be  obliging,  kind, 
and  courteous.  Never  treat  with  arrogance  or  contempt 
those  who  possess  talents  inferior  to  your  own.  God  has 
seen  fit  to  bestow  on  different  individuals  different  kinds 
and  degrees  of  mental  and  corporeal  endowments.  "You 
should  be  especially  careful,  if  you  possess  extraordinary 


ADDRESS   TO   LAW   STUDENTS.  225 

powers  of  wit  and  sarcasm,  not  to  exercise  those  powers 
unjustly  and  unkindly,  nor  to  indulge  in  ridicule  and  per- 
sonalities unprovoked  and  uncalled  for. 

Gentlemen,  graduates,  lawyers,  in  the  discharge  of 
your  professional  duties  you  should  always  be  faithful, 
undaunted  advocates  of  civil  and  religious  liberty,  of  jus- 
tice and  the  rights  of  individuals.  The  true  American 
lawyer,  informed,  prompt,  bold,  will  be  foremost  in  up- 
holding and  protecting  the  rights  of  the  people,  in  incul- 
cating a  proper  regard  for  law,  and  in  enforcing  a  steady 
devotion  to  constitutional  government.  Kind-hearted  and 
generous,  his  ear  will  ever  be  open  to  cries  of  injured 
innocence,  and  his  heart  will  beat  in  sympathy  with  the 
distresses  of  wronged  and  suffering  humanity.  He  will 
never  aid  the  unjust  man  by  wresting  the  law  to  his  pur- 
poses, to  despoil  another  of  his  property,  or  to  obstruct 
him  in  obtaining  possession  of  it.  To  the  poor  and  just 
man.  overwhelmed  by  inevitable  misfortunes,  and  involved 
in  difficulties  by  the  suspicions  and  persecutions  of  dis- 
appointed gain  or  malignant  avarice,  he  will  prove  a  stay 
and  support,  a  friend  and  champion,  a  guardian  angel  to 
guide  him  through  the  mazes  of  a  legal  labyrinth  to 
security  and  peace. 

I  feel  that  I  need  not  impress  upon  you  the  duty  of 
cherishing  a  love  for  your  Alma  Mater,  and  of  advancing, 
for  the  honor  of  Louisiana,  her  fame  and  usefulness. 
The  principles  and  the  learning  which  you  carry  home 
with  you  are  the  best  evidence  of  her  charter.  She  now 
sends  you  forth  into  the  field  of  competition  and  labor. 
The  affection,  the  good  wishes,  the  confidence  of  all  her 
professors  attend  you. 
15 


REPORT  UPON  THE  LAW  OF  EVIDENCE. 

[In  1861  the  Senate  of  the  State  of  Louisiana,  having  had 
under  consideration  a  proposed  amendment  to  the  law  of  evi- 
dence of  the  State,  listened  to  the  following  report  of  Mr.  Hunt 
in  behalf  of  the  Judiciary  Committee.] 

AT  the  last  annual  session  of  the  legislature  a  bill  was 
introduced  similar  to  that  now  before  the  Senate,  for  the 
amendment  of  the  law  of  evidence  in  this  State.  It  was 
referred  to  the  Committee  on  the  Judiciary,  who  reported 
it  back  favorably  to  the  Senate,  but  no  further  action  was 
had  upon  it.  They  did  not  press  the  immediate  consid- 
eration of  the  bill,  because  the  change  which  it  proposed 
to  make  in  the  law  of  evidence  is  radical,  and  overturns 
rules  long  established,  and  which,  until  a  comparatively 
recent  date,  received  the  commendation  of  the  ablest 
jurists  of  Europe  and  America.  It  is  true,  the  principles 
embodied  in  the  bill  had  been  thoroughly  discussed  by 
Jeremy  Bentham  and  his  followers,  and  had,  under  the 
lead  of  Lords  Denman,  Campbell,  Brougham,  and  others, 
been  successively  adopted  by  the  British  Parliament  and 
made  part  of  the  English  law.  They  had  been  advocated 
with  masterly  ability  by  Edward  Livingston  in  the  intro- 
ductory report  to  the  Code;  of  Evidence,  prepared  under 
the  authority  of  a  law  of  the  State  passed  in  1822. 
They  had  been  adopted,  too,  by  States  of  our  late  Union, 
eminent  for  their  polity  and  the  wise  administration  of 
justice.  But  the  attention  of  the  legislators  and  jurists 
of  Louisiana  did  not  appear  to  have  been  turned  to  the 
subject  ;  and  it  was  deemed  prudent  to  defer  final  action 
upon  the  matter  until  the  present  time. 


REPORT  UPON   THE   LAW   OF  EVIDENCE.       227 

The  object  of  the  bill  is  to  render  large  classes  of  per- 
sons competent  to  testify,  whose  testimony  is  excluded  by 
the  existing  law. 

The  law  excludes  the  testimony  of  persons  in  a  case 
who  are  interested  in  its  result. 

It  excludes  the  testimony  of  parties  in  their  own  favor. 

It  excludes  the  testimony  of  husband  and  wife  for  or 
against  one  another. 

It  excludes  the  testimony  of  ascendants  and  descendants 
in  civil  cases. 

It  excludes  the  testimony  of  persons  who  are  deficient 
in  religious  belief. 

It  excludes  the  testimony  of  persons  who  have  been 
convicted  of  an  infamous  offense. 

The  bill  proposes  to  alter  the  law  in  these  particulars, 
and  to  receive  the  testimony  of  the  persons  now  repudi- 
ated as  witnesses,  leaving  its  value  to  be  estimated  by 
the  judging  power. 

Before  entering  upon  the  examination  of  the  several 
provisions  of  the  bill,  the  committee  desire  to  advert  to 
some  general  principles  connected  with  them  all. 

Every  person  who  institutes  a  suit  is  bound  to  state 
such  facts  as  will  show  his  claim  to  be  founded  in  law. 
The  facts  may  be  either  admitted  or  denied.  If  admit- 
ted, it  becomes  the  duty  of  the  court  to  determine  what 
the  law  is  upon  the  facts ;  if  denied,  they  must  be  proved, 
and  this  proof  must  be  made  by  evidence.  The  duty  of 
judicial  tribunals  embraces  the  investigation  of  facts,  as 
well  as  the  application  of  the  principles  of  law  to  such  as 
are  ascertained.  Law,  indeed,  can  be  administered  only 
on  the  assumption  of  the  truth  of  the  facts  to  which  it  is 
applied. 

The  object  of  evidence  is  the  establishment  of  truth. 
Courts  of  justice  employ  the  same  means  of  investigating 
and  determining  disputed  facts  as  mankind  in  general 


228   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

make  use  of,  except  so  far  as  positive  laws  interfere. 
It  has  been  truly  said  that  the  organization  of  courts, 
the  enumeration  of  rights,  the  means  of  asserting  them,  the 
denunciation  of  penalties  for  infringing  them,  and  the 
rules  of  procedure  are  only  preparatory  steps  to  the  trial, 
which  in  itself  is  but  the  examination  of  evidence.  So 
that  ultimately  the  whole  machinery  of  jurisprudence  in 
all  its  branches  is  contrived  for  the  purpose  of  enabling 
the  judging  power  or  tribunal  to  determine  on  the  truth 
or  falsehood  of  every  litigated  statement.  This  can  only 
be  done  by  hearing  and  examining  everything  that  will 
contribute  to  bring  the  mind  to  the  determination.  If  we 
refuse  to  hear  anything  that  will  produce  the  effect,  we 
determine  011  imperfect  evidence,  and  of  course  are  sub- 
jected to  the  chance  of  making  an  eiToneous  decision. 
All  exclusions  of  evidence  are,  therefore,  injurious  to  the 
object  of  all  investigation,  —  the  discovery  of  truth.  In 
the  ordinary  affairs  of  life,  in  the  investigation  of  truth, 
no  evidence  is  rejected.  Suppose  you  wish  to  inquire  con- 
cerning some  delinquence  that  has  occurred  in  your  house, 
and  that  you  have  an  inmate  who  saw  what  occurred : 
would  you  refuse  to  ask  him  any  questions,  or  to  hear  him, 
because  you  know  he  has  been  heretofore  guilty  of  lying? 
No,  you  would  hear  his  statement,  and,  allowing  for  his 
propensity,  judge  whether  it  affected  him  in  the  case  be- 
fore you.  In  all  other  matters  of  inquiry  and  investiga- 
tion, everything  is  examined,  every  one  is  heard,  and  he 
who  is  to  judge  relies  upon  his  own  power  to  discrimi- 
nate. In  law  alone  he  is  taught  to  distrust  that  power, 
and  to  reject  all  evidence  that  may  possibly  lead  him 
astray.  Is  this  reasonable? 

To  this  question  the  common  and  the  civil  lawyers 
answer  "  Yes/'  and  extol  the  wisdom  of  the  rules  which 
exclude  the  testimony  of  certain  classes  of  persons.  In 
this  respect  they  argue  :  '•  The  law  follows  the  common 


REPORT   UPON   THE   LAW   OF  EVIDENCE.        229 

experience  of  mankind.  The  purposes  of  justice  require 
that  such  evidence  as  is  more  likely  than  otherwise  to 
mislead  should  be  excluded.  If  this  were  not  the  case,  a 
witness  unworthy  of  credit  might  often  receive  as  much 
consideration  as  one  worthy  of  the  fullest  confidence. 
We  must,  therefore,  guard  against  incorrect  decisions  by 
the  absolute  rejection  of  persons  whose  testimony,  either 
from  interest  in  the  matter  in  dispute  or  any  other  visible 
cause,  seems  likely  to  prove  untrustworthy." 

On  the  other  hand,  it  is  contended  that  no  kind  of 
evidence  whatever,  capable  of  throwing  light  on  the  ques- 
tion agitated,  ought  to  be  rejected,  unless  its  exclusion  can 
be  justified  by  the  inconvenience  and  expense  of  obtain- 
ing it,  or  by  the  vexation  and  delay  that  would  attend  it. 
In  illustration  of  the  latter  part  of  this  proposition,  the 
following  case  has  been  put :  "  By  laying  a  barrowful  of 
rubbish  on  a  spot  on  which  it  ought  not  to  have  been  laid 
(the  side  of  a  turnpike  road)  Titius  has  incurred  a  pen- 
alty of  five  shillings.  No  man  was  witness  to  the  trans- 
action but  Sempronius  :  and  in  the  station  of  writer  Sem- 
pronius  is  gone  to  make  his  fortune  in  the  East  Indies. 
Should  Sempronius  be  forced,  if  he  could  be  forced,  to 
come  back  from  the  East  Indies  for  the  chance  of  sub- 
jecting Titius  to  this  penalty  ?  Who  would  think  of  sub- 
jecting Titius  to  this  vexation  ?  Who  would  think  of 
subjecting  Sempronius  or  anybody  else  to  this  expense  ?  " 
It  is  obvious  that  the  vexation,  expense,  and  delay  in 
obtaining  the  testimony  would  amount  to  a  preponderant 
evil,  and  justify  its  exclusion.  But  it  is  insisted  that 
where  this  is  not  the  case,  all  objections  to  the  admis- 
sibility  of  a  witness  should  be  at  once  annihilated  and 
classed  under  objections  to  his  credibility,  varying  accord- 
ing to  circumstances  ;  that  in  many  cases  the  excluding  of 
a  casual  witness  to  a  fact  would  be  to  exclude  all  attain- 
able evidence  on  the  question  in  dispute,  and  offer  by 


230   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

impunity  a  premium  to  dishonesty,  fraud,  and  crime.  If 
it  be  said  that,  owing  to  unsoundness  of  mind,  deficiency 
of  religion,  antecedent  misconduct,  or  personal  interest, 
the  evidence  is  likely  to  prove  unsafe,  the  answer  is,  that 
any  line  drawn  on  the  subject  must  be  in  the  highest 
degree  arbitrary.  It  is  impossible  to  enumerate  a  priori 
the  causes  which  may  distort  or  bias  the  minds  of  men 
to  pervert  or  misstate  the  truth,  far  more  to  estimate  their 
weight  in  each  individual  case  or  with  each  individual 
person.  This  is  the  settled  opinion  of  the  ablest  English 
writers  and  jurists,  after  a  careful  examination  of  the 
arguments  concerning  the  incompetency  of  witnesses  and 
a  practical  experience  of  years  ;  and  the  opinion  is  well 
founded. 

Let  us  consider  the  matter.  For  what  purpose  does 
the  court  sit?  To  decide  correctly  the  cause  before  it. 
What  then  is  the  evil  to  be  guarded  against  ?  Erroneous 
decision,  or  "  misdecision,"  as  Bentham  calls  it,  produced 
by  false  testimony.  Now,  the  testimony  offered  and  re- 
jected was  either  necessary  to  the  cause  of  the  party  pro- 
ducing it,  or  it  was  not  absolutely  necessary. 

First,  suppose  it  necessary,  the  party  offering  it 
having  no  other  testimony  to  establish  his  right.  It  is 
plain,  in  that  case,  that  by  excluding  it  you  certainly 
produce  an  erroneous  decision,  for  fear  of  a  possible 
erroneous  decision  from  false  testimony,  "  as  a  panic- 
struck  bird  is  said  to  fly  into  the  serpent's  mouth,  or  as  a 
man  jumps  overboard  for  fear  of  being  drowned.  '  If  the 
testimony  be  admitted,  you  may  be  on  your  guard  and 
correct  the  evil.  If  it  be  rejected,  there  is  no  alternative. 
Misdecision  is  inevitable  if  testimony,  without  which  a 
just  decision  cannot  be  had,  be  rejected.  \  on  owed  a 
thousand  dollars  ;  you  paid  it  in  the  presence  of  Primus  ; 
Primus  is  convicted  of  an  offense  destroying  his  compe- 
tence to  testify  ;  his  testimony  is  rejected  :  you  lose  your 


REPORT   UPON   THE   LAW   OF  EVIDENCE.       231 

cause.  Could  more  injustice  be  done  if  he  were  admitted  ? 
False  testimony  is  given  every  day  in  some  cause  or 
other ;  cross-examination  or  counter-testimony  almost  in- 
variably corrects  it.  The  opposite  party,  the  counsel,  the 
judge,  the  jury,  are  all  on  their  guard,  and  it  is  nearly 
impossible  for  perjury,  suspected  beforehand,  to  succeed. 

Suppose,  next,  the  evidence  excluded  to  be  not  abso- 
lutely necessary,  because  the  party  offering  it  has  other 
testimony.  If  the  decision  be  given  on  that  other  tes- 
timony, the  exclusion  can  produce  no  beneficial  influ- 
ence on  the  decision  of  the  cause  ;  it  only  puts  the  party 
to  expense  to  procure  different  evidence.  A  witness 
knowing  the  suspicions  concerning  him,  and  how  much 
every  one  is  on  the  alert  to  convict  him  of  falsehood, 
would  not  commit  perjury  gratuitously.  If  he  have  any 
special  motive  to  bear  false  testimony,  this  motive  is 
extraneous  to  the  legal  motive  for  rejecting  him.  Even 
from  a  witness  desirous  of  deceiving,  examination  and 
cross-examination  will  generally  elicit  useful  truths.  Mr. 
Best  says  :  "  We  have  read  somewhere  of  a  whole  nation 
who  purposely  gave  false  answers  to  all  questions  respect- 
ing the  topography  of  their  country.  Still,  a  traveler  was 
enabled  to  ascertain  it  by  questioning  upon  incidental 
facts,  when  the  truth  naturally  oozing  out  supplied  him 
with  materials  for  arriving  at  the  knowledge  sought." 

The  rules  of  evidence  by  which  our  courts  are  gov- 
erned have  been  borrowed  in  a  great  part  from  the 
English  law.  In  revising  the  Civil  Code  in  1825,  it  was 
intended  to  prepare  a  separate  code  of  evidence.  But 
this  has  not  been  done,  and  our  Civil  Code  contains  only 
some  general  leading  principles  of  evidence  in  civil  cases. 
On  the  subject  of  exclusion,  which  is  now  under  consid- 
eration, the  systems  materially  differ,  and  are  more  or 
less  uncertain  in  their  provisions. 

Various  classes  of  persons  were  rejected  by  the  civilians 


232   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

of  mediaeval  Europe  and  by  the  old  English  lawyers  upon 
the  ground  that  giving  evidence  in  a  court  of  justice  is 
a  right  rather  than  a  duty,  and  consequently  that  incom- 
petency  to  testify  is  a  fitting  punishment  for  matters  to 
which  the  law  is  desirous  of  attaching  the  stiirma  of  dis- 

o  o 

grace. 

The  ancient  practice  in  England  affixed  the  brand  of 
incompetency  to  holding  obnoxious  opinions ;  thus  not 
only  punishing  the  delinquent,  but  inflicting  ruin  on  a 
party  to  a  suit  whose  life,  property,  or  honor  might  be 
saved  by  the  evidence  of  the  rejected  witness. 

There  can  be  110  doubt  that  this  principle  was  borrowed 
from  the  civil  law  of  the  Middle  Ages. 

In  that  law,  the  list  of  persons  liable  to  be  rejected  as 
incompetent  to  bear  testimony  was  exceedingly  large.  In 
some  instances  entire  classes  were  rejected.  The  cele- 
brated Constitution  of  the  Greek  Emperor  Anastasius 
declared  that  Pagans,  Manichyeans,  and  members  of  some 
other  sects  were  disqualified  from  giving  evidence  under 
any  circumstances  ;  while  heretics  and  Jews  were  allowed 
to  do  so  only  in  causes  in  which  they  were  parties,  and, 
except  in  peculiar  cases,  could  not  bear  testimony  against 
orthodox  Christians.  Similar  principles  prevailed  in  the 
canon  law. 

The  law  of  ancient  Rome  refused  the  testimony  of 
women  in  certain  cases,  and  the  civil  and  canon  laws  in 
the  Middle  Ages  carried  the  exclusion  further.  In  Scot- 
land, until  the  beginning  of  the  eighteenth  century,  sex 
was  a  cause  of  exclusion  in  the  great  majority  of  cases. 
Even  the  old  English  lawyers  occasionally  rejected  the 
evidence  of  women,  on  the  ground  "they  are  //-a//."  The 
reason  is  not  imlike  that  of  the  civil  law,  which  is  said 
to  be  "because  women  are  usually  frutidulcn t<i\  falldwx, 
et  dvloKrti"  or  the  reason  assigned  by  the  doctors  of  the 
canon  law,  who  declared,  in  the  language  of  Virgil, 


REPORT   UPON  THE   LAW   OF  EVIDENCE.        233 

"  varium  et  mutabile,  semper  femina"  Undoubtedly 
there  were  many  exceptions  to  these  rules.  But  even 
after  women  had  been  admitted  to  bear  testimony  in 
France,  their  evidence  was  not  considered  equivalent  to 
that  of  a  man ;  and  it  seems  to  have  been  a  principle  that 
a  virgin  was  entitled  to  greater  credit  than  a  widow,  — 
"  magis  creditur  virgini  quam  viduce." 

Under  the  civil  law  system,  all  questions  of  law  and 
fact  were  decided  by  a  single  judge.  The  examination  of 
witnesses  was  secret,  and  was  made  by  judges  unacquainted 
with  the  circumstances  of  the  case,  without  confrontation, 
personal  cross-examination,  or  publicity ;  the  parties  them- 
selves were  not  allowed  to  be  present.  Under  such  a 
system,  the  difficulty  of  detecting  falsehood  afforded  a 
plausible  pretext  for  an  extended  prohibition  of  suspected 
witnesses,  though  nothing  can  give  a  colorable  excuse  for 
the  enormous  extent  to  which  it  was  carried. 

How  different  is  the  common  law  system  and  our  own ! 
Under  these,  the  evidence  of  witnesses  is  given  viva  voce, 
in  presence  of  the  party  against  whom  they  are  produced, 
and  he  is  allowed  to  cross-examine  them.  The  great  tests 
of  the  truth  of  a  narrative  are  the  consistency  of  its  sev- 
eral parts  and  the  probability  of  the  matters  narrated. 
Stories  entirely  false  are  comparatively  rare :  it  is  by  mis- 
representation, suppression  of  some  things  and  addition 
of  others,  that  a  false  coloring  is  given  to  the  acts  of 
men ;  and  it  is  only  by  a  searching  inquiry  into  the  sur- 
rounding circumstances  that  the  whole  truth  can  be 
brought  to  light.  The  party  against  whom  false  testimony 
is  directed  is  interested  in  exposing  it,  and  is  the  person 
best  acquainted  with  the  facts  as  they  really  have  occurred, 
and  is,  therefore,  most  able  to  furnish  means  for  the  de- 
tection of  the  falseness  of  the  testimony.  Besides,  it  is 
very  difficult  for  a  witness  to  come  prepared  with  his  story 
to  meet  every  question  which  may  be  put  to  him  suddenly 


234   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

on  a  cross-examination.  And  further,  what  is  perhaps 
of  still  greater  importance,  courts  of  justice  are,  by  the 
common  law  and  by  the  law  of  Louisiana,  open  to  all. 
The  publicity  of  the  examination  of  the  witness  operates 
as  a  check  upon  mendacity  and  incorrectness.  Environed, 
as  he  sees  himself,  by  a  thousand  eyes,  contradiction, 
should  he  hazard  a  false  tale,  will  seem  ready  to  rise  up 
in  opposition  to  him  from  a  thousand  tongues.  Many  a 
known  face,  and  many  an  unknown  one,  presents  to  him 
a  possible  source  of  detection,  from  whence  the  truth  he 
is  struggling  to  suppress  may,  through  some  unsuspected 
channel,  burst  forth  to  his  confusion. 

Under  such  a  system,  the  principle  of  exclusion  is 
wholly  misplaced.  Accordingly,  the  inclination  of  mod- 
ern judges  and  law-givers  in  England  and  the  North 
American  States  is  in  favor  of  receiving  the  testimony  of 
witnesses,  leaving  its  value  to  be  properly  estimated. 

The  committee  might  rest  content  with  this  general  state- 
ment of  the  argument  in  favor  of  the  bill ;  but  they  will 
proceed  to  examine  more  particularly  the  grounds  on 
which  the  several  clauses  of  the  bill  are  based.  And  first, 
the  law  excludes  the  testimony  of  persons  who  are  in- 
terested in  the  result  of  the  suit.  The  rule,  it  is  said,  is 
founded  on  the  known  infirmities  of  human  nature,  which 
the  law  deems  too  weak  to  be  generally  restrained  by 
religious  or  moral  obligations,  when  tempted  and  solicited 
in  a  contrary  direction  by  temporal  interests.  Its  object 
is  to  guard  against  the  danger  of  perjury,  and  to  shut  out 
testimony  unworthy  of  credit  in  judicial  investigations. 
u  There  is,"  said  Lord  Chief  Baron  Gilbert,  '"  from  the 
nature  of  human  passions  and  actions,  more  reason  to  dis- 
trust such  biased  testimony  than  to  believe  it." 

The  principle  upon  which  the  rule  rests  is  altogether 
unfounded.  It  assumes  that,  in  the  great  majority  of 
instances,  men  are  so  corrupt  that,  from  a  mere  regard 


REPORT  UPON  THE  LAW  OF  EVIDENCE.   235 

to  their  interest,  however  small  that  interest  may  be,  they 
will  violate  the  duties  of  morality  and  religion,  and  run 
the  risk  of  incurring  the  penalties  of  the  law  by  commit- 
ting perjury,  for  the  chance  of  imposing  upon  the  judge 
and  jury,  after  counter-testimony  and  strict  cross-exami- 
nation, before  the  public,  in  open  court,  where  every  one 
who  hears  them  testify  is  aware  of  their  bias  and  on  his 
guard  against  deception  by  false  testimony.  For  although 
other  strong  motives  to  produce  mendacity  may  be  secret, 
yet  interest,  pecuniary  motive,  before  it  can  render  a 
witness  incompetent,  must  be  proved  and  known  to  the 
court  and  jury.  The  assumption  is  contrary  to  all  expe- 
rience. In  general,  witnesses  are  honest,  however  much 
interested  :  and  in  most  cases  of  dishonesty  the  falseness 
of  the  testimony  is  detected,  and  misleads  none. 

Let  it  be  remembered  that  the  great  object  to  which  all 
the  rules  of  evidence  should  be  directed  is  the  discovery 
of  truth ;  and  that  the  only  question  is,  Will  the  object 
be  better  effected  by  the  admission  or  by  the  exclusion  of 
the  witness  ?  No  one  who  has  an  enlarged  knowledge 
of  human  nature,  or  any  respect  for  the  society  in  which 
he  lives,  would  hesitate  to  admit  the  witness. 

Undoubtedly,  interest  may  be  a  motive  with  some  per- 
sons for  mendacity  and  perjury,  but  its  influence  varies 
upon  different  persons.  The  amount  of  the  interest,  the 
condition  of  the  witness,  his  standing  in  society,  his  for- 
tune, education,  sensibility,  and  other  circumstances  may 
affect  and  control  the  influence.  Who  can  believe  that 
the  loss  or  gain  of  five  dollars  would  have  affected  the 
testimony  of  George  Washington  or  of  John  Marshall  ? 
On  the  other  hand,  suppose,  with  Mr.  Bentham,  an  ill- 
educated  laborer,  with  a  wife  and  children  on  the  point 
of  starving :  is  there  any  analogy  between  the  cases  ? 

Now,  the  truth  is  secured  among  men  in  their  mutual 
intercourse  by  powerful  sanctions  or  guarantees :  (1.)  By 


236   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

the  natural  sanction,  which  is  a  sort  of  instinct  that  im- 
pels man  to  speak  the  truth,  and  makes  him  do  violence 
to  himself  whenever  he  betrays  it  and  injures  another. 
(2.)  By  the  moral  or  popular  sanction,  which  punishes, 
with  disgrace,  the  liar.  (3.)  By  the  religious  sanction, 
which  is  founded  on  the  dread  of  future  punishment. 
(4.)  By  the  legal  sanction,  which  punishes  false  testi- 
mony in  a  judicial  proceeding,  and  renders  it  difficult  to 
devise  a  falsehood  that  will  pass  examination  in  a  court 
of  justice.  All  these  sanctions  are  in  continual  operation 
to  secure  the  truth  of  testimony  befoi'e  the  courts.  If  it 
be  admitted  that  men  may  occasionally  be  found  in  whom 
motives  of  interest  preponderate  over  the  powerful  re- 
straining motives  just  enumerated,  it  cannot  be  denied  that 
they  constitute  a  very  small  number  in  comparison  with 
those  to  whom  the  interest  is  too  trifling  to  be  an  object 
compared  to  their  fortune  and  situation  in  life  ;  those 
who,  under  the  influence  of  a  strong  interest,  would  be 
restrained  by  the  stronger  motives  of  religion  or  morality  ; 
those  who  would  be  deterred  by  the  fear  of  shame  or 
of  punishment ;  and  those  who,  without  these  restraints, 
find  their  hearts  to  fail  them  from  the  difficulty  of  fram- 
ing false  testimony  so  as  to  give  it  the  semblance  of 
truth. 

Ought  we  then  to  exclude  the  numerous  interested  wit- 
nesses who  would  tell  the  truth,  because  a  few  interested 
would  commit  perjury  at  the  risk  of  detection  and  pun- 
ishment ? 

Remember  the  law  has  drawn  no  line  of  pecuniary  in- 
terest ;  it  makes  no  distinction  between  interests  of  differ- 
ent amounts,  or  between  interested  witnesses  of  different 
characters  ;  it  quite  overlooks  the  ratio  between  the  sum 
in  question  and  the  pecuniary  circumstances  of  the  wit- 
ness. No  matter  what  the  amount  of  interest  is,  one 
cent,  one  dollar,  one  hundred,  one  thousand,  one  million, 


REPORT  UPON  THE  LAW  OF  EVIDENCE.   237 

the  effect  is  the  same,  the  witness  is  excluded.  It  is  true, 
the  interest  appears,  and  if  the  law  would  permit  the  wit- 
ness to  be  heard  his  testimony  might  be  weighed  and  his 
motives  judged.  But  no :  by  the  law  of  exclusion  for 
pecuniary  interest,  a  cent  may  render  a  man  venerated 
for  his  holy  life,  of  the  highest  sense  of  honor,  and  worth 
a  million  of  dollars,  a  witness  too  suspicious  to  be  credited 
on  his  oath.  And  this  is  law :  "  founded,"  says  Lord 
Erskine,  "  in  the  charities  of  religion,  in  the  philosophy 
of  nature,  in  the  truths  of  history,  and  in  the  experience 
of  common  life." 

Who  is  the  person  suffering?  The  innocent  suitor. 
Suppose  the  excluded  testimony  is  necessary  to  save  the 
character  or  life  of  the  party  offering  it.  One  man  is 
presumed  to  be  a  perjurer,  and  therefore  another  man  is 
disgraced  for  life  or  punished  with  death. 

Our  law  excludes,  in  civil  cases,  all  persons  from  testi- 
fying who  are  interested,  directly  or  indirectly,  in  the 
result  of  the  suit.  This  is  imperatively  expressed  in 
Article  2260  of  the  Civil  Code.  But  our  courts  have,  by 
a  long  series  of  decisions,  adopted  the  English  rule,  and 
excluded  only  those  who  are  directly  interested ;  they 
have  admitted  all  the  exceptions  contained  in  the  English 
law.  Now,  the  interest  which  excluded  at  common  law 
was  a  legal  interest ;  that  is,  a  direct  certain  interest  in 
the  event  of  the  case,  or  an  interest  in  the  record  for  the 
purposes  of  evidence,  however  minute  that  interest  may 
have  been.  This  rule,  so  wide  and  extensive  in  its  terms, 
gave  rise  to  constant  questions  and  doubts,  and  the  courts 
gradually  relaxed  it  by  making  numerous  and  important 
exceptions  to  it,  irreconcilable  with  the  principle  of  the 
rule  itself.  Thus,  a  certain  legal  interest,  to  the  amount 
of  a  dollar,  excludes  ;  a  contingent  interest,  to  the  amount 
of  a  million,  is  unnoticed.  The  consequence  is  that  par- 
ties are  often  competent  to  give  evidence  who  are  swaved 


238       REPORT   UPON   THE   LAW   OF   EVIDENCE. 

by  the  strongest  moral  interest  to  pervert  the  truth. 
Again,  a  factor,  or  any  other  agent,  who  is  to  receive  a 
commission  on  the  amount  of  a  contract  or  sale,  is  de- 
clared a  competent  witness  to  prove  the  sale  or  contract 
for  his  principal.  A  servant  employed  to  deliver  goods 
to  a  purchaser,  or  a  clerk  employed  to  pay  money  to  a 
creditor,  is  a  good  witness  to  prove  the  delivery  or  the 
payment,  as  the  case  may  be.  But  if  the  cause  depend 
on  the  question  whether  the  agent  or  servant  has  been 
guilty  of  neglect  or  misconduct,  he  is  not  a  competent 
witness  for  his  principal  without  a  release,  because  he  is 
liable  over.  Cases  without  number,  of  a  similar  char- 
acter, might  be  cited,  wherein  the  disqualification  from 
interest  was  found  so  inconsistent  with  public  policy  as  to 
cause  constant  inroads  to  be  made  upon  the  principle  of 
exclusion.  These  cases  are  frequently  entirely  contradic- 
tory to  each  other,  or  supported  by  decisions  abounding  in 
flimsy  and  subtle  distinctions,  and  occasionally,  by  their 
contrariety,  creating  much  legal  doubt.  In  order  to  meet 
the  difficulty,  various  expedients,  by  means  of  release, 
etc.,  were  resorted  to,  for  the  purpose  of  restoring  the 
competency  of  interested  witnesses.  Speaking  of  release, 
Lord  Brougham,  then  Mr.  Brougham,  in  his  celebrated 
speech  on  law  reform,  in  the  House  of  Commons,  in  1828, 
said  :  "  Evidence  is  thus  often  cooked  up  for  the  court, 
nay,  in  the  court,  while  the  witness  is  in  the  box,  which, 
according  to  the  existing  rules,  is  not  admissible  without 
this  process  of  release.  Now,  what  is  the  real  effect  of 
the  release  on  the  mind  of  the  witness  ?  .lust  nothing; 
for  if  he  be  an  honorable  man,  he  gives  it  up  the  moment 
he  leaves  the  box,  and  while  swearing  he  knows  that  he  is 
to  do  so." 

The  courts  in  England  still  further  relaxed  the  rule  of 
exclusion  in  the  case  of  Bent  >'.  Baker,  in  which  it  was 
decided  that,  in  an  action,  one  underwriter  of  a  policy  was 


REPORT  UPON  THE  LAW  OF  EVIDENCE.   239 

a  competent  witness  for  another  underwriter  of  the  same, 
even  though  his  evidence  substantially  settled  the  case  as 
to  both.  Without  dwelling  further  upon  the  decisions  of 
the  courts,  it  will  suffice  to  observe  that  the  practical  in- 
convenience of  so  extensive  an  exclusion  of  witnesses  as 
that  on  the  ground  of  interest  being  found  intolerable, 
Parliament  at  length  interfered,  and  in  1834,  by  the 
Statute  3d  and  4th  William  IV.,  rendered  competent 
the  whole  class  of  witnesses  excluded  by  an  interest  in  the 
record  as  an  instrument  of  evidence ;  but  provided  that 
the  record  should  not  be  admissible  in  evidence  in  another 
cause,  for  or  against  such  witnesses.  It  would  seem  that 
this  statute  introduced  no  new  principle,  but  merely  re- 
moved the  interest  which  would  otherwise  have  disquali- 
fied the  witnesses,  like  the  notable  expedient  of  a  release 
described  by  Brougham. 

But  this  was  superseded  in  1843  by  the  Statute  6th 
and  7th  Victoria,  85,  commonly  known  by  the  name  of 
Lord  Denman's  Act.  After  reciting  that  "  the  inquiry 
after  truth  in  courts  of  justice  was  often  obstructed  by 
incapacities  created  by  the  present  law,  and  it  was  desir- 
able that  full  information  as  to  facts  in  issue,  both  in 
criminal  and  civil  cases,  should  be  laid  before  the  persons 
appointed  to  decide  upon  them,  and  that  such  persons 
should  exercise  their  judgment  on  the  credit  of  the  wit- 
nesses adduced  and  on  the  truth  of  their  testimony,  it 
enacted  that  no  person  offered  as  a  witness  shall  be  ex- 
cluded, by  reason  of  incapacity  from  interest,  from  giving 
evidence  in  any  cause,  except  in  certain  cases  therein 
afterwards  specified."  At  length  came  Lord  Campbell's 
Act,  14th  and  15th  Victoria,  c.  99,  August,  1851,  to  amend 
the  law  of  evidence,  which  has  effectually  expunged  from 
English  jurisprudence  the  title  of  "  incompetency  of  wit- 
nesses from  interest.'' 

The   example   of    England  has    been    followed    in    the 


240   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

States  of  America  very  generally,  —  in  Connecticut,  New 
York,  Ohio,  Massachusetts,  Mississippi,  and  other  States. 

The  committee  conclude  their  report  on  this  portion  of 
the  bill  by  citing  the  uniform  testimony  of  the  English 
lawyers  upon  the  subject,  who  declare  that  "  of  all  the 
acts  in  their  statute  book,  these  which  render  interested 
witnesses  competent  contain  in  the  smallest  compass  the 
greatest  amount  of  good.  They  settle  the  law  upon  an 
intelligible,  reasonable,  and  satisfactory  basis,  put  an  end 
to  some  of  the  most  intricate  perplexities  of  the  law,  and 
reject  a  principle  which  was  unsound  in  theory,  and  in 
practice  often  led  to  results  most  unfavorable  to  the  due 
administration  of  justice." 

The  time  has  come  when  Louisiana  should  act  upon 
this  matter,  and,  gaining  wisdom  from  the  experience  of 
others,  admit  the  evidence  of  interested  witnesses  without 
exception,  leaving  the  weight  of  the  evidence  to  be  deter- 
mined by  the  judging  power. 

The  committee  will  next  proceed  to  the  consideration 
of  the  provision  in  the  bill  for  the  repeal  of  the  rule 
which  excludes  the  testimony  of  the  parties  in  a  civil  suit. 
This  exclusion  is  substantially  embraced  in  that  which 
has  just  been  considered.  It  rests  upon  the  ground  that 
it  removes  the  temptation  to  perjury,  and  secures  judicial 
tribunals  from  being  deceived  by  false  testimony  and  led 
into  erroneous  decisions. 

To  a  certain  extent  our  present  law  has  repudiated  this 
argument.  It  allows  one  party  to  the  suit  to  examine  the 
adverse  party.  A  plaintiff  may  interrogate  the  defendant, 
and  the  defendant  the  plaintiff.  The  bias  of  a  party  in 
his  own  favor  is  known,  and  every  corrective  is  ready  to 
be  used  against  him:  cross-examination,  counter-evidence, 
publicity,  experienced  counsel,  judge,  and  jury.  Surely 
there  can  be  no  great  danger  of  being  misled  by  false 
testimony  iinder  such  circumstances. 


EEPORT  UPON  THE  LAW  OF  EVIDENCE.   241 

There  are  two  defects  in  our  present  law  upon  the  sub- 
ject. The  first  consists  in  the  mode  of  examining,  and  in 
the  effect  given  to  the  evidence ;  the  second,  in  not  allow- 
ing a  party  to  be  examined  whenever  he  himself  chooses. 
The  parties  are  generally  those  best  acquainted  with  the 
facts  of  the  case,  and  best  able  to  state  them.  If  it  be 
desirable  to  hear  them,  there  can  be  no  reasonable  objec- 
tion to  extract  from  them  the  whole  truth  by  a  public 
examination  in  the  same  way  as  we  extract  truth  from 
other  witnesses.  The  testimony  of  every  witness  should 
be  left  to  have  that  weight  which  his  character  or  other 
circumstances  justly  entitle  it  to.  The  declaration  of  a 
party  may  not  be  believed  by  the  judge  and  jury.  He  is 
certainly  a  suspicious  witness,  and  yet  the  law  declares 
that  his  oath  shall  be  conclusive,  unless  contradicted  by 
two  witnesses,  or  one  witness  corroborated  by  circum- 
stances or  written  proof.  The  true  rule  is  to  put  his  tes- 
timony on  a  footing  with  that  of  any  other  witness. 

The  exclusion  of  a  party's  testimony  in  his  own  favor 
strikes  at  the  great  principle  of  legal  evidence,  that  the 
best  evidence  should  be  adduced.  It  renders  inferior 
evidence  necessary,  at  the  hazard  of  delay,  vexation,  and 
expense,  parties  generally  knowing  most  about  the  mat- 
ter in  dispute. 

Why  should  a  party  be  deprived  of  the  right  of  being 
heard,  of  clearing  up  doubts,  and  rectifying  errors  which 
may  have  been  produced  by  the  inattention  or  design  of 
witnesses,  or  the  ambiguity  of  other  evidence  ?  Why  ex- 
clude that  which  is  calculated  to  throw  most  light  upon 
the  subject? 

The  rule  of  exclusion  is  broken  in  upon  in  all  motions 
upon  affidavit,  —  an  affidavit  drawn  by  his  lawyer,  and 
heard  without  cross-examination  :  in  the  affidavit  to  hold 
to  bail ;  in  the  affidavit  to  attach,  and  in  the  affidavit  to 
sequester  property ;  in  the  affidavit  for  an  injunction, 
16 


242   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

and  in  the  various  affidavits  used  in  the  progress  of  a 
cause.  It  is  broken  in  upon  in  the  oath  in  litem :  first, 
in  cases  where  the  party  against  whom  it  is  offered  has 
fraudulently  or  unwarrantably  intermeddled  with  the 
plaintiff's  goods,  and  no  other  evidence  can  be  had  of  the 
amount  of  the  damages ;  and  second,  when  on  grounds  of 
public  policy  it  is  deemed  essential  to  the  purposes  of 
public  justice.  In  a  word,  the  exceptions  are  so  numerous 
that  the  rule  itself  serves  only  the  purposes  of  deception  ; 
it  no  longer  prevails  in  England. 

Shortly  after  the  passing  of  Lord  Denman's  Act,  the 
statute  for  the  establishment  of  county  courts,  which 
superseded  a  large  number  of  minor  tribunals  in  England, 
was  promulgated.  It  provided  that  parties  in  those  new 
courts  should  be  witnesses  on  either  side.  This  was  not 
an  innovation,  for  the  old  Court  of  Conscience  and  Court 
of  Requests  contained  similar  provisions.  By  the  old 
bankruptcy  acts,  passed  under  James  I.,  every  bankrupt 
was  made  a  competent  witness  in  relation  to  the  bank- 
ruptcy, and  this  principle  is  incorporated  into  the  present 
bankrupt  law  of  England. 

By  far  the  greater  portion  of  the  numerous  demands 
recoverable  in  the  county  courts  were  recoverable  in  the 
superior  courts.  In  the  former,  the  evidence  of  the  party 
weighed  :  in  the  latter,  it  was  deemed  wholly  unworthy  of 
trust.  It  thus  appeared  as  if  the  superior  courts  had  less 
efficacious  means  of  testing  the  truth  of  evidence  and  de- 
tecting falsehood  than  the  inferior  tribunals.  The  plain- 
tiff (who  had  his  option  as  to  where  he  would  sue),  if  his 
own  testimony  would  be  adverse,  or  he  knew  the  evidence 
of  the  defendant  would  establish  the  defense,  sued  in  the 
superior  court,  and  excluded  the  evidence.  The  jurisdic- 
tion of  county  courts  having  been  considerably  enlarged, 
and  the  evidence  of  parties  having  proved  beneficial  to 
the  administration  of  justice,  it  was  deemed  unreasonable 


REPORT  UPON  THE  LAW  OF  EVIDENCE.   243 

to  preserve  a  distinction  between  the  rules  of  evidence  in 
the  tribunals.  By  the  act  to  amend  the  law  of  evidence, 
passed  7th  August,  1851,  14th  and  15th  Victoria,  c.  99, 
all  the  parties  to  a  suit,  and  those  in  whose  behalf  a  suit 
is  brought,  are  admissible  witnesses,  on  behalf  of  either 
or  any  of  the  parties  to  the  suit. 

The  committee  have  felt  and  still  feel  much  doubt 
whether  this  principle  should  be  extended  to  criminal 
cases.  They  are  inclined  to  think  the  provision  in  Lord 
Brougham's  Act,  which  declares  that  no  person  shall  be 
compelled  to  criminate  himself,  or  to  give  evidence  against 
himself  upon  any  charge  brought  against  him  for  a  crim- 
inal offense,  is  founded  in  philosophy  as  it  is  undoubt- 
edly in  clemency.  They  have,  therefore,  retained  the 
provision  in  the  bill  before  the  Senate. 

By  our  code,  as  well  as  under  the  common  law,  the  rule 
by  which  parties  are  excluded  from  being  witnesses  for 
themselves  applies  to  the  case  of  husband  and  wife ; 
neither  of  them  being  admissible  as  a  witness  in  a  cause, 
civil  or  criminal,  in  which  the  other  is  a  party  or  has  in- 
terests involved.  The  exclusion  is  founded  partly  on 
their  legal  identity,  and  partly  on  public  policy,  which 
requires  that  the  confidence  between  husband  and  wife 
should  be  sacredly  protected  and  cherished  as  the  best 
solace  of  human  existence. 

The  committee  have  stated  this  exclusionary  rule  and 
the  reasons  assigned  for  it  in  the  language  of  Mr.  Green- 
leaf.  If  the  rule  were  limited  to  the  protecting  from  dis- 
closure matters  communicated  in  nuptial  confidence,  or 
facts  the  knowledge  of  which  has  been  acquired  in  con- 
sequence of  the  relation  of  husband  and  wife,  the  com- 
mittee would  not  recommend  its  repeal,  but  it  is  an 
absolute  prohibition  of  the  testimony  of  the  witness  to 
any  facts  affecting  the  husband  or  wife,  as  the  case  may 
be,  however  the  knowledge  of  these  facts  may  have  been 


244       REPORT   UPON   THE   LAW   OF   EVIDENCE. 

acquired.  The  rule  only  applies  where  the  husband  or 
wife  is  party  to  the  suit,  and  does  not  extend  to  a  collat- 
eral suit  between  third  parties.  And  the  declarations  of 
a  wife,  acting  as  the  agent  of  her  husband,  are  evidence 
against  him,  like  the  declarations  of  any  other  agent. 

The  exceptions  to  the  rule  are  important.  In  cases 
where  a  personal  injury  is  threatened  or  inflicted  by  one 
on  the  other,  the  law  does  not  allow  the  legal  identity  of 
husband  and  wife  to  supersede  the  great  principle  that 
the  state  is  bound  to  protect  the  life  and  limbs  of  its 
citizens  ;  and  it  generally  happens  that  offenses  of  this 
kind  cannot  be  proved  without  the  evidence  of  the  injured 
party.  In  such  cases,  therefore,  the  injured  husband  or 
wife  may  testify  against  the  other.  And  yet,  with  what 
has  been  called  "  a  cruel  absurdity,"  in  a  case  of  bigamy, 
the  first  wife  is  not  a  competent  witness  against  the  ac- 
cused, she  is  prohibited  from  proving  the  fact  of  her 
marriage,  her  mouth  is  stopped  against  him,  while,  with 
strange  inconsistency,  she  is  allowed  to  prove  the  fact  in 
a  collateral  suit  between  third  persons  ! 

As  early  as  21  Jac.  1,  c.  19,  commissioners  in  bank- 
ruptcy were  authorized  to  examine  the  bankrupt's  wife  to 
discover  any  property  concealed  by  him  ;  and  the  provi- 
sion was  reenacted  under  George  IV.  The  examination 
of  the  bankrupt  and  wife  in  a  modified  form  was  retained 
under  the  present  Queen  of  England.  The  county  courts, 
Acts  9  and  10  Victoria,  which  rendered  parties  to  suits 
competent  witnesses  in  those  courts,  extended  "  to  their 
wives  and  all  other  persons.''  And  finally,  the  statute  of 
1853,  1C  and  17  Victoria,  c.  99  (Lord  Brougham's  Act), 
not  overlooking  the  temptation,  naturally  arising  out  of 
the  marriage  connection,  to  induce  husband  and  wife  to 
favor  each  other,  but  considering  it,  like  any  other  known 
bias,  to  be  guarded  against  and  allowed  for,  enacted 
that  husband  and  wife  should  be  competent  witnesses  for 


REPORT   UPON   THE   LAW   OF  EVIDENCE.       245 

and  against  each  other  in  all  civil  cases,  except  in  pro- 
ceedings in  consequence  of  adultery  ;  but  they  were  not 
competent  in  any  criminal  proceedings  against  each  other, 
nor  compellable  to  disclose  any  communication  made  by 
one  to  the  other  during  the  marriage.  This  statute  has 
been  substantially  copied  and  adopted  by  the  leading 
States  of  the  late  Union,  and  its  provisions  are  embodied 
in  the  bill  referred  to  the  committee.  They  are  recom- 
mended to  the  adoption  of  the  Senate,  as  founded  in 
principle  and  sanctioned  by  experience. 

If  the  reasoning  in  this  report  is  correct,  it  necessarily 
follows  that  the  rule  of  our  Civil  Code  which  excludes  the 
testimony  of  ascendants  and  descendants  for  or  against 
each  other  should  be  repealed.  The  rule  does  not  pre- 
vail in  criminal  cases.  Pride,  passion,  affection,  friend- 
ship, blood  relationship,  the  love  of  parents  and  of  chil- 
dren, are  110  disqualification  of  a  witness  in  a  criminal 
prosecution  affecting  the  life,  liberty,  property,  or  honor 
of  the  accused.  But  let  the  case  be  a  civil  one  involving 
a  claim  of  twenty  dollars,  and  our  law  will  not  permit 
an  ascendant  or  descendant  to  testify  for  or  against  each 
other  when  a  party  to  the  suit.  Are  there  not  the  same 
means  of  ascertaining  whether  the  father  or  son  tells 

O 

the  truth  in  a  civil  suit  as  in  a  criminal  suit?  If  ad- 
mitted as  a  witness  in  the  latter,  ought  he  not  also  to  be 
admitted  in  the  former  case  ?  Cannot  the  weight  of  his 
evidence  be  equally  considered  in  each  case  ?  The  com- 
mittee are  of  opinion  that  the  proposed  alteration,  which 
will  admit  the  evidence  of  ascendants  and  descendants  in 
civil  as  well  as  in  minimal  cases,  should  be  made. 

It  remains  for  the  committee  to  examine  the  rules 
which  exclude  the  testimony  of  witnesses  who  do  not  be- 
lieve in  the  existence  of  a  God  and  a  future  state  of  re- 
wards and  punishments,  and  of  witnesses  who  have  been 
convicted  of  any  infamous  offense. 


246        REPORT   UPON   THE   LAW   OF   EVIDENCE. 

The  sanctions  by  which  mendacity  is  restrained  and 
truth  is  secured  —  natural,  moral,  religious,  and  political 
—  have  been  pointed  out  already  ;  the  difficulty  of  devis- 
ing a  falsehood  that  will  pass  examination  in  a  court,  the 
fear  of  legal  punishment,  the  fear  of  disgrace  and  loss  of 
character,  the  pain  of  falsehood  and  injustice,  the  dread 
of  future  punishment.  Of  these  sanctions,  one  only,  the 
religious  sanction,  has  no  influence  on  the  mind  of  the 
atheist.  The  other  sanctions  operate  with  full  force  upon 
him.  "  Atheism,"  says  Lord  Bacon,  "  leaves  a  man  to 
sense,  to  philosophy,  to  natural  piety,  to  laws,  to  repu- 
tation :  all  which  may  be  guides  to  an  outward  moral 
virtue,  though  religion  were  not." 

Ought  atheism,  then,  and  other  forms  of  infidelity 
which  deny  all  exercise  of  divine  power  in  punishing 
falsehood,  to  be  recognized  as  a  sufficient  ground  to  ren- 
der a  person  incompetent  to  testify  ?  The  committee 
think  they  ought  not. 

The  law  presumes  that  every  man  brought  up  in  a 
Christian  land,  where  God  is  generally  acknowledged,  does 
believe  in  Him  and  fear  Him.  The  witness  himself  cannot 
be  questioned  as  to  his  religious  belief,  because  this  would 
be  a  personal  scrutiny  into  the  state  of  his  faitli  and  con- 
science foreign  to  the  spirit  of  our  institutions.  No  man 
is  bound  to  avow  his  belief  :  but  if  he  does  avow  it,  the 
avowal  may  be  proved,  like  any  other  fact,  by  third  per- 
sons. 

Now,  it  is  argued  by  Mr.  Bentham,  and  those  who  have 
succeeded  him,  that  he  who  runs  counter  to  the  religious 
persuasions  of  the  community  is  sure  to  meet  with  much 
obloquy  and  great  personal  inconvenience.  Suppose  such 
a  man  produced  as  a  witness.  In  a  conversation  with 
several  persons  he  had  avowed  himself  to  be  an  atheist, 
and  had,  by  so  doing,  marred  the  prospects  of  success  that 
he  entertained  for  himself  and  his  family.  Nothing  pro- 


REPORT   UPON   THE   LAW   OF   EVIDENCE.        247 

vented  him  from  affirming  the  contrary,  or  concealing  his 
opinion  and  escaping  the  injury  and  the  stigma  which  his 
avowal  fastened  on  him,  but  a  regard  for  truth  and  a 
respect  for  his  own  character  in  society  and  in  his  own 
family.  This  is  deemed  a  sufficient  ground  to  disbelieve 
him,  and  he  is  rejected  as  incompetent  to  testify.  His 
declaration  of  atheism  renders  him  utterly  incompetent. 

We  read  of  conspirators  in  crime  who,  in  order  to  secure 
impunity,  bind  each  other  by  solemn  oaths  never  to  reveal 
the  part  taken  by  any  of  them  in  the  perpetration  of  the 
crime.  How  much  more  efficacious  is  the  mode  furnished 
by  this  rule  of  evidence  !  Let  a  man  who  proposes  to 
join  in  committing  a  crime  make  his  associates  avow 
themselves  to  be  atheists,  and  he  will  be  perfectly  secure 
as  against  them.  In  this  way,  any  knot  of  criminals  may 
combine  and  secure  impunity,  and  any  man  whatever  may 
get  rid  of  the  inconvenience  of  giving  testimony.  A 
man  is  indicted  for  a  crime.  Paul  was  present  at  the 
time  of  its  commission,  and  knows  all  the  circumstances. 
He  is  summoned  to  testify.  He  wishes  to  screen  the  cul- 
prit. He  declares  to  the  friends  of  the  prisoner,  or  to 
other  persons,  that  he  is  an  atheist,  and  suggests  to  the 
counsel  of  the  accused,  "  Ask  Primus,  Secundus,  Tertius, 
if  I  did  not  avow  myself  to  be  an  atheist."  The  objec- 
tion is  taken,  the  witness  is  dismissed,  the  culprit  is  set 
free. 

Is  it  wise  to  leave  it  in  the  power  of  any  man  whose 
breast  is  the  repository,  perhaps  the  sole  repository,  of 
evidence  affecting  the  lives  and  fortunes  of  others,  to 
stifle  that  evidence  by  pretending  to  hold  erroneous  views 
on  the  subject  of  religion  ?  But  even  if  we  suppose  the 
want  of  religious  faith  to  be  genuine,  is  it  not  more 
properly  an  objection  to  the  credit  than  to  the  competency 
of  the  witness  ? 

In  England,  the  Statute  6  and  7  Victoria,  c.  22,  allowed 


248   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

the  unsworn  testimony  to  be  received  of  the  members 
of  certain  barbarous  races  in  the  British  colonies,  who 
are  described  in  that  statute  "  as  destitute  of  the  know- 
ledge of  God  and  of  any  religious  belief,''  and  left  but  a 
little  more  to  be  done  in  order  to  destroy  the  mischievous 
principle  of  the  old  law,  which  punished  the  holder  of 
obnoxious  opinions  by  rendering  him  incompetent  to  give 
evidence. 

Under  the  rule  which  rejects  the  testimony  of  persons 
insensible  to  the  obligations  of  an  oath,  the  law  excludes 
infamous  persons  ;  that  is,  persons  who  have  been  guilty 
of  those  heinous  crimes  which  men  generally  are  not 
found  to  commit,  unless  when  so  depraved  as  to  be 
unworthy  of  credit  for  truth.  It  is  unnecessary,  and  it 
would  be  somewhat  difficult,  to  enumerate  with  nicety  the 
offenses  deemed  infamous  by  law.  In  order  to  test  the 
propriety  of  this  exclusion,  the  case  of  perjury  may  be 
selected. 

Does  it  follow  that  a  man,  because  he  has  been  once 
convicted  of  perjury  and  suffered  the  penalty  of  the  law 
therefor,  will,  whenever  he  may  be  called  on  to  testify, 
commit  another  perjury,  and  render  himself  liable  to 
renewed  punishment  ?  And  that,  too,  in  cases  where  no 
motive  could  exist  or  be  surmised  for  his  perjury?  Sup- 
pose the  offense  to  have  been  committed  in  the  folly  tide 
of  youth,  under  motives  of  kindness  intermingled  with 
temptations,  and  to  have  been  repented  of  for  fifty  years. 
Ought  this  to  be  imputed  to  him  after  living  half  a 
century  of  virtue  and  truth  ?  And  must  an  innocent 
man,  who  has  no  other  witness  to  prove  the  groundless- 
ness of  a  charge  against  him,  be  unjustly  condemned 
because  the  witness  was  guilty  of  a  delinquency  so  many 
years  before;  ?  All  exclusions  operate  as  a  punishment 
on  the  parties  who  need  the  testimony  excluded.  A  per- 
jured person,  cannot  be  a  witness  on  behalf  of  another 


REPORT   UPON  THE   LAW   OF  EVIDENCE.        249 

person,  but  may  in  behalf  of  himself.  In  his  own  cause 
he  may  make  any  affidavit  necessary  to  his  exculpation, 
or  defense,  or  personal  protection,  or  for  relief  against  an 
irregular  judgment,  or  the  like.  And  in  the  very  teeth  of 
the  rule  which  excludes  persons  infamous, "  repellitur  a 
sacramento  infamis"  a  man  may,  in  legal  strictness,  be 
convicted  even  of  a  capital  offense,  on  the  unsupported 
evidence  of  a  person  avowing  himself  an  accomplice  in 
his  crime,  who  is  taken  out  of  jail  to  bear  testimony 
against  his  companion,  and  gives  his  testimony  in 
vinculis,  in  custody  with  a  rope  round  his  neck,  being 
liable  on  his  own  confession  to  execution  if  the  govern- 
ment be  dissatisfied  with  his  conduct  in  this  respect. 

A  witness  of  depraved  and  abandoned  character,  Mr. 
Starkie  says,  may  not  be  unworthy  of  credit  where 
there  is  no  motive  for  misrepresentation ;  for  there  is  a 
constant  tendency  to  declare  the  truth  which  is  never 
wholly  eradicated  even  from  the  most  vicious  minds,  and 
the  danger  of  detection  and  the  risk  of  temporal  punish- 
ment may  operate  as  restraints  upon  the  most  unprinci- 
pled, even  when  motives  of  veracity  of  a  higher  nature 
are  wanting. 

In  England,  all  objections  to  the  competency  of  wit- 
nesses on  the  ground  of  infamy  have  been  removed  by 
the  act  on  evidence,  6  and  7  Victoria,  c.  85,  Lord  Denman's 
Act,  which  declares,  "  No  person  offered  as  a  witness  shall 
hereafter  be  excluded  by  reason  of  incapacity  from  crime 
from  giving  evidence  in  any  court,  but  every  person  so 
offered  shall  be  admitted  to  give  evidence,  notwithstanding 
he  may  have  been  previously  convicted  of  any  crime." 

The  committee  have  now  laid  before  the  Senate  the 
theory  of  human  nature  on  which  the  exclusionary  rules 
of  evidence  that  the  bill  proposes  to  abolish  are  based, 
and  have  shown  that  the  theory  is  false  and  degrading  to 
the  society  in  which  we  live,  while  the  rules  themselves 


250   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

have  been  in  so  many  particulars  impaired  and  over- 
thrown by  admitted  exceptions  conflicting  with  them  as 
to  involve  the  law  upon  the  subject  in  obscurity,  doubt, 
and  difficulty,  to  obstruct  the  inquiry  after  truth  in 
courts  of  justice,  to  deny  to  innocence  the  proper  and 
natural  means  of  protection,  and  in  many  instances  to 
secure  impunity  to  fraud  and  crime.  They  have  shown 
that  the  theory  and  the  rules  have  been  repudiated  and 
repealed  in  England  and  in  most  of  the  late  United  States 
of  America,  and  that  the  true  principle  of  evidence  is 
that  now  adopted  in  the  courts  of  those  countries :  put 
everybody  on  the  stand  who  knows  anything  about  the 
case,  and  let  the  persons  appointed  to  decide  upon  the 
facts  in  issue,  both  in  civil  and  criminal  cases,  exercise 
their  judgment  on  the  credit  of  the  witnesses  adduced 
and  on  the  truth  of  their  testimony. 

In  stating  the  arguments  for  and  against  the  rules  now 
existing,  the  committee  have  freely  used  the  language 
employed  by  the  courts,  and  by  the  common  lawyers,  and 
by  the  most  distinguished  advocates  of  reform. 

It  is  time  to  throw  off  the  trammels  and  prejudices 
generated  by  the  long  habit  of  thinking  and  acting  in  a 
legal  routine,  and  to  legislate  upon  correct  principles. 

It  certainly  would  be  desirable,  if  practicable,  to  have 
perfect  witnesses  in  every  case.  "  But  perfect  men  do 
not  exist ;  and  if  the  earth  were  covered  witli  them, 
delinquents  would  not  send  for  them  to  be  witnesses  of 
their  delinquency.  The  legislator,  then,  lias  this  option, 
and  no  other :  to  open  the  door  to  witnesses,  or  to  give 
license  to  crimes.  For  all  purposes  lie  must  take  men  as 
lu;  finds  them  :  and  for  the  purposes  of  testimony  he  must 
take  such  men  as  happen  to  sec  and  know  what,  had  it 
depended  on  the  actors,  would  not  have  been  seen  and 
known  by  anybody.'' 

The  amendments  proposed  were  as  follows  :  — 


REPORT   UPON   THE   LAW   OF   EVIDENCE.        251 


AN    ACT    RELATIVE    TO    THE    LAW    OF    EVIDENCE. 

Whereas  the  inquiry  after  truth  in  courts  of  justice  is  often 
obstructed  by  incapacities  created  by  the  present  law  of  evi- 
dence ;  and  whereas  it  is  desirable  that  full  information  as  to 
the  facts  in  issue,  both  in  criminal  and  in  civil  cases,  should 
be  laid  before  the  persons  appointed  to  decide  upon  them,  and 
that  such  persons  should  exercise  their  judgment  on  the  credit 
of  the  witnesses  adduced  and  on  the  truth  of  their  testi- 
mony : 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  State  of  Louisiana,  in  General 
Assembly  convened,  No  person  shall  be  incompetent  as  a 
witness  because  of  his  or  her  conviction  of  crime,  or  his  or  her 
interest  in  any  issue  or  question  before  any  court  or  officer 
authorized  to  administer  oaths. 

SEC.  2.  Be  it  further  enacted,  etc.,  Nothing  herein  shall 
render  any  person  who  in  any  criminal  proceeding  is  charged 
with  the  commission  of  any  offense  against  law  competent  or 
compellable  to  give  evidence  for  or  against  himself  or  herself, 
or  shall  render  any  person  compellable  to  answer  any  question 
tending  to  criminate  himself  or  herself. 

SEC.  3.  Be  it  further  enacted,  etc..  Parties  shall  be  com- 
petent and  compellable  to  testify  on  behalf  of  themselves  or  of 
others,  in  any  suit  or  other  proceeding  pending  in  a  court,  or 
before  any  person  authorized  to  administer  oaths.  And  the 
husbands  and  wives  of  the  parties  shall,  except  as  hereinafter 
excepted,  be  competent  and  compellable  to  testify  on  behalf  of 
any  party  to  the  suit  or  other  proceedings. 

SEC.  4.  Be  it  further  enacted,  etc.,  Nothing  herein  shall 
render  any  husband  compellable  to  give  evidence  for  or  against 
his  wife,  or  any  wife  competent  or  compellable  to  give  evidence 
for  or  against  her  husband,  in  any  criminal  proceeding,  or  in 
any  proceeding  instituted  in  consequence  of  adultery. 

SEC.  5.  Be  it  further  enacted,  etc.,  No  husband  shall  be  com- 
petent or  compellable  to  disclose  any  communication  made  to 
him  by  his  wife  during  the  marriage,  and  no  wife  shall  be 


252   REPORT  UPON  THE  LAW  OF  EVIDENCE. 

competent  or  compellable  to  disclose  any  communication  made 
to  her  by  her  husband  during  the  marriage. 

SEC.  6.  Be  it  further  enacted,  etc.,  Ascendants  and  descen- 
dants shall  be  severally  competent  witnesses  for  or  against  each 
other  in  all  suits  or  proceedings,  civil  or  criminal. 


THE   RIGHTS   OF  THE   STATES. 

[The  following  extracts  must  have  been  written  about  the 
conclusion  of  the  civil  war.  They  serve  to  show  the  views  of 
Mr.  Hunt  upon  the  policy  to  be  pursued  by  the  general  govern- 
ment towards  the  States,  which  had  joined  the  Secession  move- 
ment.] 

To  exclude  the  citizens  of  the  Southern  States  from  all 
share  in  the  government  of  our  common  country ;  to  deny 
them  all  voice  in  it ;  and,  not  content  with  having  forced 
them  to  change  their  domestic  institutions,  to  hold  them 

O 

in  absolute  subjection  under  a  military  rule  more  despotic 
than  that  of  a  Roman  proconsul  or  propraetor ! 

The  people  of  Louisiana  are  loyal.  There  are  doubt- 
less a  few  individuals  to  be  found  scattered  here  and 
there  in  the  State  who  are  unwilling  to  submit  to  the 
national  government  and  are  not  to  be  trusted.  But  the 
determination  to  support  and  obey  the  Constitution  and 
the  laws  of  the  United  States  is  almost  universal.  I 
know  no  man  of  character  and  talent  who  has  taken  the 
oath  of  allegiance  to  the  government  who  is  disloyal.  I 
know  no  such  man  who  can  take  the  "  test  oath,"  accord- 
ing to  my  interpretation  of  it.  Mr.  Clingman,  in  a  letter 
to  the  "New  York  Times"  (December  8, 1865),  expressed 
his  belief  that  no  man  in  North  Carolina  can  take  it  with- 
out perjury.  If  the  oath  be  insisted  on,  the  South  cannot 
have  real  representatives  in  Congress,  although  they  may 
have  nominal  or  counterfeit  representatives,  which  would  be 
worse  than  to  have  no  representatives  at  all.  Is  it  not  then 
the  dictate  of  true  wisdom  and  policy  to  allow  men  of  talent 


254  THE   RIGHTS   OF  THE   STATES. 

and  consideration,  loyal  and  true  to  the  Constitution,  to 
represent  the  States,  and  thus  to  secure  to  the  national 
government  and  administration  the  entire  political  and 
moral  support  of  the  South?  The  government  of  the 
United  States  can  have  the  entire  people  of  the  South 
true  to  it  by  accepting  them  as  such.  The  Southern 
States  acknowledge  their  errors,  have  complied  with  all 
the  requisitions  of  the  President,  are  anxious  to  be  re- 
stored to  the  Union  as  its  friends  and  supporters.  The 
United  States  can  at  once  and  forever  secure  this  friend- 
ship and  support  by  allowing  them  to  exercise  the  privi- 
leges that  belong,  according  to  the  Constitution,  to  all  the 
States  of  the  Union.  But  if,  without  any  necessity  or 
reason,  they  be  kept  under  military  rule,  disaffection  may 
be  produced  and  the  expenses  of  the  government  in- 
creased, to  the  injury  of  the  government  as  well  as  of  the 
South.  Some  designing  politicians  and  placemen,  and 
some  persons  still  inflamed  with  a  desire  for  vengeance, 
will  persist  in  still  regarding  the  South  as  an  enemy  to  be 
punished.  But  good  and  reflecting  men  cannot  fail  to 
remember  that  the  Southern  States  have  suffered  more 
severely  than  any  community  in  modern  times.  Two 
thirds  of  their  property  is  gone  :  four  millions  of  slaves 
emancipated  ;  their  land  and  personal  property  depre- 
ciated :  the  entire  country  desolated  and  laid  waste ; 
many  — alas,  how  many!  —  of  their  best  men  and  noblest 
youths  wounded  and  killed  ;  universal  grief  pervading 
the  land  ;  women,  children,  and  aged  men  at  the  point  of 
starvation!  Overwhelmed  by  numbers,  and  unable  longer 
to  resist,  the  South  have  abandoned  their  contest  against 

o 

the  power  of  the  North.  In  attempting  to  secede  from 
the  Federal  Union  they  acted  under  a  mistaken  but  ear- 
nest and  honest  conviction  that  they  had  the  constitu- 
tional right  to  secede,  and  that  their  interest  and  the 
security  of  their  slave  property  required  them  to  resort  to 


THE   RIGHTS   OF   THE   STATES.  255 

the  exercise  of  that  right.  Nor  were  they  alone  in  that 
opinion.  The  extreme  doctrines  of  state  rights,  as  taught 
by  Mr.  Calhoun  and  his  followers  in  the  South,  were  the 
avowed  doctrines  of  a  large  portion  of  the  leading  Demo- 
crats of  the  North.  These  doctrines  necessarily  led  to 
the  conclusion  that  the  several  States  possessed  the  right 
of  seceding.  It  is  true  that  President  Buchanan,  the  last 
Democratic  President  of  the  United  States,  after  South 
Carolina  had  by  a  convention  declared  that  she  was  no 
longer  a  member  of  the  Union,  did,  in  a  message  to  Con- 
gress, enter  upon  an  argument  to  prove  that  no  State 
had  a  right  to  secede.  But  it  will  be  remembered  that 
he  at  the  same  time  declared  that  the  national  govern- 
ment had  no  power  to  coerce  the  State.  This  extraordi- 
nary position  of  the  President  of  the  United  States  gave 
heart  to  the  advocates  of  secession  and  paralyzed  the  ad- 
vocates of  the  Union  in  the  South,  until  at  length,  when 
Mr.  Lincoln  succeeded  to  the  presidency,  the  South  pre- 
sented an  unbroken  hostile  front  to  the  government  of 
the  United  States.  Every  department  of  that  govern- 
ment—  executive,  legislative,  judicial- — then  denied  the 
right  that  the  South  had  asserted,  and  war,  bloody,  deso- 
lating war,  ensued.  All  candid  persons  admit  that  sla- 
very was  the  true  cause  that  led  to  it.  The  issue  of  the 
war  has  decided  against  the  doctrine  of  secession  as 
taught  in  the  state-rights  school  of  politics.  The  despei'- 
ate,  sanguinary,  and  desolating  struggle  between  the  two 
sections  of  the  Union  has  settled  forever  this  question. 
No  wise  or  patriotic  man  will  ever  again  endeavor  to  per- 
suade the  people  that  secession  is  a  peaceful  remedy,  or 
urge  them  to  a  new  trial  of  the  fearful  issue.  The  war 
has  also  settled  that  slavery  is  and  shall  forever  be  abso- 
lutely exterminated  in  all  the  States  of  the  Union.  The 
people  of  the  South,  with  manly  fortitude  and  frankness, 
acknowledge  these  facts  and  acquiesce  in  the  result  with 


256  THE   RIGHTS   OF  THE   STATES. 

extraordinary  unanimity.  President  Johnson,  himself  a 
Southerner  and  thoroughly  acquainted  with  the  people  of 
the  South,  has,  with  enlightened  humanity  and  a  wise 
policy,  encouraged  the  people  in  their  desire  to  return  to 
their  loyalty  and  to  reconstruct  the  Union  and  the  govern- 
ment at  once. 

Of  course  the  Constitution  of  the  United  States  recog- 
nizes the  existence  of  States.  One  branch  of  the  legis- 
lature of  the  United  States  is  composed  of  senators 
appointed  by  the  States  in  their  state  capacities.  The 
Constitution  of  the  United  States  says  that  "  the  United 
States  shall  guarantee  to  each  State  a  republican  form  of 
government,  and  shall  protect  the  several  States  against 
invasion."  According  to  our  system,  it  devolves  upon 
the  President  to  determine  in  the  first  instance  what  are 
and  what  are  not  governments.  He  recognizes  govern- 
ments, foreign  governments,  as  they  appear  from  time  to 
time  in  the  changes  of  the  world.  The  provision  of  the 
Constitution  that  guarantees  to  every  State  in  this  Union 
a  republican  form  of  government,  protection  against 
invasion,  and  under  certain  circumstances  against  domes- 
tic violence,  and  the  law  of  Congress  making  provision  for 
carrying  this  constitutional  duty  into  effect  in  proper 
cases,  make  it  the  duty  of  the  President  to  decide  what  is 
the  rightful  government  of  the  State  in  cases  of  commo- 
tion. He  cannot  avoid  the  decision. 

We  know  that  the  executive  in  the  first  instance 
treated,  and  in  his  proclamations  expressly  designated, 
the  rebellion  of  the  States  as  "  an  insurrection,7'  and  we 
know,  too,  that  Congress  subsequently  joined  him  in  so 
treating  and  designating  it.  The  executive  has  now 
recognized  the  existence  of  the  several  States  of  the 
South  and  their  respective  governments.  He  has  aided 
in  reorganizing  them.  He  has  counseled  them  in  regard 
to  changes  in  their  fundamental  laws,  lie  has  submitted 


THE   RIGHTS   OF  THE   STATES.  257 

to  them  for  ratification  proposed  amendments  to  the 
Constitution  of  the  United  States  under  the  provision  of 
the  Constitution  which  declares  that  amendments  pro- 
posed by  two  thirds  of  both  houses  shall  be  valid  when 
ratified  by  three  fourths  of  the  legislatures  of  the  several 
States.  He  has,  through  the  Secretary  of  State  of  the 
United  States,  solemnly  proclaimed  that  those  amendments 
have  been  adopted  by  the  concurrent  votes  of  some  of 
the  States  of  the  South.  He  is  daily  proceeding  in  the 
glorious  work  of  reconstructing  the  Union  through  the 
agency  of  the  people  and  the  governments  of  the  States  of 
the  South.  He  has  extended  to  them  the  hand  of  friend- 
ship and  confidence,  and  recognized  them  in  every  way 
within  his  power  as  members  of  the  Union. 

From  his  provisional  governors  and  special  agents 
deputed  to  gain  information,  the  President  has  had  the 
best  opportunity  of  learning  the  true  condition  of  the 
South  and  the  present  sentiments  of  the  people  ;  and 
whether,  in  seeking  again  the  constitutional  right  of  rep- 
resentation, they  are  prepared  to  comply  with  all  their 
constitutional  obligations,  and  whether  their  elections 
were  made  in  a  proper  way. 

True  policy  requires  Congress  to  expedite  rather  than 
delay  the  recognition  and  readmission  of  the  Southern 
senators  and  representatives.  In  the  present  condition  of 
things,  the  functions  of  these  States  are  suspended.  They 
are  excluded  from  all  representation  in  the  national 
legislature.  They  have  not  even  a  territorial  voice,  but 
are  as  speechless  as  if  they  were  dead.  It  is  not  right,  it 
is  not  consistent  with  the  principles  of  the  Constitution  of 
the  United  States,  nor  with  the  public  safety,  for  any  part 
of  the  country  to  legislate  for  any  other  part  of  the  coun- 
try without  giving  it  a  voice  in  that  legislation.  Repre- 
sentation is  the  vital  principle  of  American  republican 
institutions.  Its  denial  to  any  extent  mars  and  destroys 
17 


258  THE   RIGHTS   OF  THE   STATES. 

the  regular  operation  of  the  government,  and  gives  rise 
to  every  kind  of  abuse.  If  the  South  is  to  he  deprived  of 
all  representation  and  made  subject  to  laws  in  framing 
which  it  has  had  no  part,  it  will  be  impossible  to  avoid 
the  spirit  of  sectionalism  and  discrimination  against  it. 
The  natural  effect  of  this  must  be  to  beget  a  sense  of 
grievous  oppression  and  wrong,  which  must  inevitably  lead 
to  an  intense  hatred  on  the  part  of  the  Southern  people 
of  their  oppressors.  Observe  the  present  condition  of  the 
South.  They  have  submitted.  They  have  complied  with 
all  the  requisitions  of  the  North.  They  are  anxiously  wait- 
ing to  see  how  their  submission  and  compliance  will  be 
received  and  treated  ;  whether  the  Northern  people  desire 
again  to  fraternize  with  them,  or  mean  only  to  be  their 
masters.  A  generous  and  magnanimous  policy  by  Con- 
gress in  admitting  their  representatives  and  burying  the 
past  would  completely  extinguish  every  lingering  and 
smouldering  feeling  of  resentment,  and  remove  the 
last  sense  of  humiliation  that  cannot  exist  without 
some  bitterness.  A  harsh  and  jealous  treatment  would, 
on  the  other  hand,  not  only  repress  the  better  impulses  of 
the  Southern  heart,  but  fill  it  with  a  determination  to 
oppose  the  government,  and  would  perpetuate  that  spirit 
of  sectionalism  of  which  the  North  so  loudly  complains, 
and  would  give  to  it  intensity  in  the  worst  form.  It  is 
impossible  to  shut  out  all  Southern  representation  with- 
out producing  the  impression  that  the  North  means  to 
domineer  and  degrade.  If  it  be  said  that  the  new  loyalty 
of  the  South  is  defective  and  immature,  I  answer  that  the 
assertion  is  not  correct.  I  know  the  people  of  Louisiana. 
I  know  that  there  are  among  them  not  a  few  who  are  dis- 
contented and  sullen,  but  the  vast  majority  of  them  accept 
their  situation  with  manly  frankness,  and  admit  their  er- 
rors ;  they  have  not  only  adopted  and  approved  the  amend- 
ments to  the  Constitution  of  the  United  States,  but  have 


THE   RIGHTS   OF  THE   STATES.  259 

returned  to  their  allegiance  with  a  firm  resolve  to  be  true 
to  it.  Nothing  could  have  a  more  powerful  and  a  more 
blessed  influence  upon  the  discontented  than  that  the 
Northern  heart  is  ready  for  a  complete  reconciliation. 
What  better  means  can  be  imagined,  what  more  thor- 
ough, prompt,  and  convincing,  than  to  admit  the  South- 
ern representation  in  the  halls  of  Congress?  Suppose 
the  worst,  —  suppose  that  a  portion  of  the  South  should 
continue  factious  and  discontented.  What  could  they  do, 
what  possible  harm  ?  Why,  even  if  the  entire  South 
were  disaffected  and  of  doubtful  loyalty,  they  would  still 
form  but  a  wretched  minority  in  the  house.  Nay,  let  me 
go  a  step  further.  I  appeal  to  the  great  Union  senti- 
ment which  pervades  this  Congress,  to  the  overwhelming 
strength  which  it  possesses,  and  which  no  possible  ele- 
ments of  opposition,  however  combined,  can  prevent  from 
working  its  will.  Let  Congress  trust  to  that  strength,  and 
act  with  generous  fearlessness.  Uninfluenced  by  any  feel- 
ings of  bitterness  and  resentment  or  theoretical  dogmas, 
let  them  admit  into  their  bosom  the  truly  accredited  repre- 
sentatives of  the  South,  so  that  they  may  have  full  know- 
ledge of  the  condition  of  every  part  of  our  land,  and  act 
justly  for  all.  The  spirit  of  liberty  and  of  national  con- 
cord and  of  the  Union  demands  this  at  their  hands. 

How  can  Northern  statesmen,  who  so  often  and  so  elo- 
quently express  their  sympathy  for  oppressed  Ireland, 
simply  because  its  people  have  been  deprived  of  an  equal 
right  and  equal  voice  in  the  government  of  Great  Britain, 
reconcile  these  enlarged  and  liberal  views  with  that  policy 
which  would  deprive  the  people  of  the  South  of  any 
voice  whatsoever  in  making;  laws  by  which  they  are  to  be 

O  ^  *- 

governed,  or  in  the  administration  of  the  national  affairs 
of  our  common  country  ? 

There  is  no  reason  to  doubt  that  the  persons  who  have 
been  pardoned  by  the  President  have  taken  the  oath  of 


260  THE   RIGHTS   OF  THE   STATES. 

allegiance  in  good  faith.  They  may  be  as  securely  relied 
on  as  any  class  of  people  in  the  South.  They  have  no 
motive  to  break  the  oath.  If  the  test  oath  was  intended 
simply  to  be  protective,  it  is  plain  that  it  is  no  longer 
necessary  for  that  purpose,  because  there  is  no  longer 
treason,  actual  or  potential.  Nobody  believes  a  renewal 
of  the  rebellion  possible.  The  test  oath  never  was  in- 
tended as  punitory.  It  is  not  fit  that  representatives  and 
senators  elect  should  be  excluded  from  Congress  merely 
as  a  punishment.  If  it  is  best  to  punish  them,  it  should  be 
done  in  the  usual  way,  with  the  regular  pains  and  penal- 
ties of  the  law  visited  upon  persons  and  property.  There 
is  no  such  independent  punishment  known  to  our  statute 
as  exclusion  from  places  of  public  trust ;  that  exclusion  is 
only  incidental  to  some  high  penal  conviction. 

If  it  be  said  that  men  so  lately  covered  with  treason 
ought  not  to  be  admitted  to  the  national  Congress,  I  ask, 
in  reply,  "  Is  such  a  feeling  as  this  to  be  indulged,  at  the 
expense  of  the  best  interests  of  the  country,  which  impe- 
riously call  for  an  early  reconstruction  ?  Is  there  any- 
thing in  it  to  justify  the  continuance  of  the  suspension  of 
the  representative  principle,  which  is  the  very  vital  essence 
of  the  American  system  of  government  ?  "  The  President's 
magnanimous  policy  upon  this  subject  has  been  attended 
with  the  happiest  results.  Let  the  action  of  Congress 
harmonize  witli  his,  and  the  republic  will  at  once  be  re- 
stored to  all  its  constitutional  and  glorious  working. 

Extraordinary  as  has  been  the  history  of  our  country 
for  the  last  four  years,  —  the  war,  its  commencement,  its 
progress,  its  close,  the  immense  amount  of  treasure  ex- 
pended, the  number  of  lives  lost,  the  armies  raised,  the 
wealth,  power,  and  resources  of  the  country,  —  nothing  is 
more  surprising  than  the  fact  that  the  Southern  people,  so 
soon  after  they  had  been  defeated,  resumed  the  pursuits 
of  agriculture,  commerce,  and  the  general  business  of  life 


THE   RIGHTS   OF  THE   STATES.  261 

with  a  cheerful  and  proper  spirit ;  they  have  exhibited  no 
inactivity  or  indolence,  no  indifference  to  the  ordinary  am- 
bitions of  men.  During  the  last  nine  months  their  progress 
in  material  activity  and  development  has  been  great  and 
steady.  The  cash  received  for  the  large  amount  of  cot- 
ton which  it  turned  out  that  the  South  had  preserved,  — 
upwards  of  eleven  hundred  thousand  bales,  —  amounting 
to  four  hundred  millions  of  dollars,  and  the  large  amount 
of  Northern  capital  invested  there,  together  with  the  tide 
of  immigration  turning  towards  the  South,  give  hopes  for 
its  attainment  of  a  condition  of  national  prosperity  un- 
equaled  in  the  past,  and  for  a  return  of  amity  between 
all  parts  of  the  Union,  if  the  South  be  promptly  admitted 
to  the  enjoyment  of  its  right  of  representation  in  the 
councils  of  the  nation,  and  of  local  self-government,  ac- 
cording to  the  Constitution  of  the  United  States. 

Nothing,  in  my  opinion,  illustrates  more  clearly  the 
sterling  worth  of  character  of  the  Southern  people  than 
the  manner  in  which  the  officers  and  soldiers  of  the  late 
Confederate  armies  have  deported  themselves  since  the 
failure  of  that  cause  to  which  they  had  devoted  their 
most  earnest  work  and  hearts.  Generals  and  privates,  all 
have  met  their  fate  like  men,  and  addressed  themselves  to 
the  task  of  building  up  their  ruined  fortunes.  They  are 
to  be  seen  in  every  position,  —  in  the  universities  and 
colleges  of  learning,  in  the  temples  and  houses  of  reli- 
gious worship,  in  the  halls  of  medical  science  and  of 
jurisprudence,  in  the  counting-house  and  in  the  work- 
shop, in  the  field,  and  on  the  rivers  and  lakes  and  oceans, 
—  in  every  honorable  and  honest  pursuit ;  laboring,  toil- 
ing, intent  upon  obtaining  an  honest  livelihood,  and,  as 
I  have  already  said,  returning  to  their  common  country, 
repentant  and  loyal,  like  the  prodigal  son  to  the  home  of 
his  father.  Will  that  parent  receive  them  with  kindly 
heart,  or  with  cruel  reproaches  and  suspicion  ?  Rest  as- 


262  THE   RIGHTS   OF   THE   STATES. 

sured  that  persons  of  such  character,  though  in  returning 
to  their  old  places  they  may  find  strangers  occupying  for 
a  time  stations  of  high  authority,  will  certainly  be  called 
again  to  guide  and  direct  the  interests  of  their  own  land. 

With  regard  to  Louisiana,  the  President  of  the  United 
States  has  recognized  the  state  authorities,  maintained 
them  in  their  functions,  and  refused  to  appoint  a  provis- 
ional governor  and  other  state  officers.  In  a  word,  he 
has  recognized  the  state  organization  and  state  govern- 
ment, and  left  it  uncontrolled,  save  by  that  martial  law 
which,  wherever  it  prevails,  overrides  all  other  laws  and 
constitutions. 

Nor  has  the  popular  branch  of  the  national  government 
failed  to  recognize  the  constitutional  existence  of  the  State 
of  Louisiana.  While  the  war  was  yet  raging,  Flanders 
and  Halm  were  elected  members  of  the  House  of  Repre- 
sentatives in  the  Congress  of  the  United  States,  went  to 
Washington,  were  admitted  to  the  seats  they  claimed, 
and  participated  in  the  debates  and  legislation  of  our 
common  country. 

It  is  true  that  the  Senate  of  the  United  States  did  not 
permit  Mr.  Smith  and  Mr.  Cutler,  who  were  elected  to  be 
members  of  that  body  by  the  legislature  of  Louisiana,  to 
take  their  seats.  But  this  was  not  upon  the  ground  that 
Louisiana  was  not  a  State  of  the  Union,  but  because  the 
legislature,  so  called,  that  elected  them  represented  only 
an  insignificant  portion  of  the  territory  and  of  the  popu- 
lation of  the  State.  Now  the  legislature  of  Louisiana 
represents  the  entire  people  and  the  entire  territory  of 
the  State,  and  that  legislature  has  elected  two  citizens 
of  the  United  States  to  fill  the  places  which  Smith  and 
Cutler  had  been  improperly  chosen  to  fill.  Observe  how 
Senator  Howard,  of  Michigan,  spoke:  "The  measure 
before  you  proposes  to  acknowledge  eight  thousand  citi- 
zens of  Louisiana  as  the  State,  and  to  give  them  the 


THE   RIGHTS   OF  THE   STATES.  263 

rights  and  privileges  belonging  to  more  than  fifty  thou- 
sand." Hear  Mr.  Wade,  of  Ohio :  "  Is  it  not  exceed- 
ingly important  that  we  shall  have  here  for  four  or  five 
days,  side  by  side  with  us  in  the  senate  chamber,  two  men 
from  Louisiana,  representing  nobody  and  nothing  except 
the  will  of  the  commander-in-chief  of  the  army  of  the 
United  States  ? "  Senator  Sprague,  of  Rhode  Island, 
declared  his  ability  to  prove  that  thirty  of  the  state 
legislature  that  elected  Mr.  Smith  and  Mr.  Cutler  were 
officers  of  the  general  government  from  the  Northern 
States  ;  and  Mr.  Grimes,  of  Iowa,  said  he  "  was  prepared 
to  prove  that  the  voters  whose  votes  were  polled  in  the 
outlying  parishes  were  carried  in  army  transports  to  the 
places  where  they  voted,  —  being  discharged  soldiers  and 
persons  belonging  in  New  Orleans,  —  and  were  brought 
back  again  to  New  Orleans  that  night "  (7th  February, 
1864). 

On  the  3d  of  December,  1865,  the  President,  by  Mr. 
Seward,  congratulated  Alabama  as  being  the  State,  the 
twenty  -  seventh,  which  completed  the  adoption  of  the 
amendment  of  the  Constitution  of  the  United  States  and 
altered  the  organization  of  the  whole  Union.  The  Con- 
stitution of  the  United  States  declares  that  amend- 
ments to  the  Constitution  proposed  by  Congress  shall  be 
valid  when  ratified  by  the  legislatures  of  three  fourths  of 
the  several  States,  or  by  conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may 
be  proposed  by  Congress.  In  the  amendment  just  made 
Congress  decided  that  the  legislatures  of  the  States 
should  act.  It  was  accordingly  submitted  to  the  legis- 
latures of  Louisiana,  Arkansas,  Virginia,  North  Caro- 
lina, South  Carolina,  Georgia,  Tennessee,  and  Alabama. 
The  action  of  all  these  legislatures  was  considered  by 
the  President  the  action  of  state  legislatures.  It  is  only 
in  this  point  of  view  that  the  ratification  by  the  State  of 


264  THE   RIGHTS   OF  THE   STATES. 

Alabama  can  be  considered,  as  the  twenty-seventh  State 
which  was  necessary  to  form  the  complement  of  votes 
required  to  make  the  three  fourths  of  the  state  legis- 
latures required  by  the  Constitution.  If  the  Congress 
of  the  United  States,  directly  or  indirectly  in  its  legis- 
lation, accept  the  ratification  by  these  States,  the  South- 
ern States  will  be  thereby  accepted  as  within  the  Union  ; 
for  the  highest  act  a  State  can  exercise  is  to  alter  the 
Constitution,  the  fundamental  law  of  the  country.  It  is 
true  that  Mr.  Surnner  has  introduced  a  resolution  into 
the  Senate  declaring  the  amendment  to  be  adopted  by 
three  fourths  of  the  States  represented  in  Congress.  By 
this  resolution  only  twenty-five  States  are  considered  to 
be  in  the  Union,  while  eleven  provinces,  or  dependencies, 
—  for  such  he  considers  the  rebellious  States,  — -  must  be 
legislated  for  as  void  of  all  right  of  local  self-government, 
and  subject  now  to  military  rule,  and  hereafter  to  such 
form  of  government  as  Congress  may  substitute  therefor. 
A  doctrine  so  monstrous  is  not  to  be  discussed  ! 

I  have  stated  the  extraordinary  doctrine  of  President 
Buchanan.  A  State  has  no  right  to  secede,  but  the 
United  States  has  no  right  to  prevent  a  State  from 
seceding.  The  laws  of  the  United  States  are  supreme, 
but  a  State  cannot  be  compelled  to  obey  them.  The 
violation  of  those  laws  may  be  a  crime,  but  no  person 
violating  them  under  state  authority  can  be  punished.  I 
do  not  desire  to  dwell  upon  the  abstract  theories  and 
antagonisms,  section  jealousies  and  disputes,  enlisting  the 
evil  passions  of  humanity,  kindling  the  fires  of  discord 
and  hatred  until  they  burn  fiercer  and  fiercer  for  a  series 
of  years,  and  at  length  the  American  people,  abandoning 
reason,  forgetting  their  memories  of  common  sufferings 
and  common  triumphs,  regardless  of  the  glory  that 
awaited  them  as  a  united  people,  looking  upon  each  other 
with  mutual  aversion  and  deadly  hatred,  drew  the  sword, 


THE   RIGHTS   OF  THE   STATES.  265 

and  each  section  of  the  country,  in  a  desire  for  triumph, 
assuming  the  specious  garb  of  patriotism,  relied  for  the 
arbitrament  of  their  differences  upon  the  wager  of  battle. 
For  four  long  years  the  contest  has  been  waged ;  the 
award  is  against  the  South  as  a  party  to  the  issue,  and 
the  whole  people  have  accepted  that  award  as  by  the  will 
of  one  man,  and  have  wisely  renounced  that  which  they 
could  not  by  valor  achieve.  They  have  solemnly,  in 
remodeling  their  Constitutions,  declared  the  supremacy  of 
the  Constitution  and  laws  of  the  United  States,  meaning 
thereby  to  pledge  their  fidelity  to  the  whole  country,  to 
recognize  their  duty  to  and  interest  in  the  whole  country, 
and  look  with  confidence  to  the  discharge  of  their  recipro- 
cal obligation  by  the  people  of  the  entire  country.  They 
have  not  been  discouraged  by  the  suspicion  and  distrust 
openly  expressed  towards  them  by  the  more  violent  poli- 
ticians of  the  North.  Determined  faithfully  to  observe 
and  obey  the  behests  of  the  federal  Constitution,  repress- 
ing all  improper  and  narrow  promptings  of  mere  sectional 
feelings  and  interests,  sustained  by  conscious  rectitude, 
they  will  maintain  with  calm  dignity  and  unshaken  reso- 
lution the  position  they  have  assumed.  A  storm  of 
dreadful  violence  and  fury  has  swept  over  them.  As  the 
billows  of  the  mighty  deep  continue  to  roll  mountains 
high,  even  after  the  tempest  has  subsided  and  the  winds 
have  lulled,  so  the  fierce  and  angry  passions  roused  by  the 
terrible  war  which  raged  for  four  long  years  were  not 
at  once  calmed,  but  continued  to  swell  and  toss  the  pub- 
lic mind  after  peace  was  restored.  But  they  are  fast  sub- 
siding, and  the  atmosphere,  although  somewhat  troub- 
lous, is  rapidly  clearing.  The  clouds  are  vanishing, 
prejudices  disappearing,  and  reason  is  rapidly  resuming 
its  sway.  The  North  cannot  fail  to  perceive  that  the 
South,  however  wrong  in  principle,  acted  without  any 
taint  of  duplicity  in  endeavoring  to  separate  herself  from 


266  THE   RIGHTS   OF   THE   STATES. 

the  United  States.  However  unwise  and  erroneous  her 
conduct,  it  was  open,  marked  with  courage  and  with 
truth,  the  inseparable  companions  of  magnanimity.  The 
Southern  people  now,  in  returning  to  their  allegiance,  do 
so  with  sincerity,  and  those  who  distrust  them  or  regard 
them  with  suspicion  will  in  due  time  learn  to  respect  their 
character,  and  marvel  less  at  their  approved  fealty  than 
at  their  own  ungenerous  tardiness  in  discovering  it. 

There  is  evidently  a  class  of  politicians,  represented  by 
a  number  of  members  of  Congress,  whose  counsels  and 
actions  indicate  a  settled  purpose  of  opposing  the  recon- 
struction of  the  Southern  States.  The  numerous  and 
extraordinary  requirements  and  conditions  they  seek  to 
impose,  the  captious,  exacting,  implacable  spirit  of  sec- 
tional hatred  and  strife  that  actuates  them,  leave  no 
room  to  doubt  their  object,  —  an  object  dangerous  to  the 
financial  prosperity  of  the  country  and  disgraceful  to 
the  republican  name.  Who  can  doubt  that  the  Southern 
people  are  sincerely  desirous  of  a  genuine  reconciliation  ? 
They  have  almost  with  one  voice  acknowledged  them- 
selves overcome  ;  they  unhesitatingly  and  without  reserve 
accepted  the  amnesty  oath  of  President  Johnson  ;  they 
accepted  the  provisional  governors  that  he  appointed,  and 
treated  them  with  respect  and  confidence,  though  many 
of  them  were  persons  never  really  of  their  choice.  They 
elected  conventions  of  men  in  full  sympathy  with  the 
government,  and  remodeled  their  state  Constitutions  in 
accordance  with  the  suggestions  of  the  President.  They 
elected  legislatures  anxious  to  satisfy  the  government  at 
Washington,  and  adopted  every  measure  calculated  to 
facilitate  the  work  of  reconstruction.  They  have  returned 
to  the  pursuits  of  industry,  and  in  no  part  of  their  wide 
territory  is  there  any  attempt  or  desire  to  oppose  the 
government  of  the  United  States.  They  are  churlish, 
thwarting,  mutinous,  but  submit  with  a  good  grace,  such 


THE   RIGHTS   OF  THE   STATES.  267 

as  nobody  could  have  ventured  to  predict  one  year 
ago. 

Does  the  interest  of  the  nation,  does  an  enlightened 
policy,  justify  Congress  in  meeting  this  display  of  good 
sense  and  good  feeling  in  the  Southern  people  with  dis- 
trust and  aversion  or  with  friendly  encouragement?  If 
we  consider  the  North  as  victors  in  the  war,  are  they  not 
bound  by  a  generous  manly  policy  to  a  speedy  reconcilia- 
tion ?  If  we  consider  them  as  Union  men,  are  they  not 
morally  bound,  in  a  devotion  consistent  with  that  cause 
in  the  name  of  which  this  terrible  war  was  carried  on,  to 
do  their  utmost  to  have  the  Union  restored  as  soon  as  it 
can  be  done  with  safety  and  without  violation  of  princi- 
ple ?  Should  a  mere  feeling  of  animosity  and  resentment 
prevent  the  discharge  of  this  high  and  important  duty  ? 

The  Southern  people  are  a  suffering  people  ;  the  war 
has  left  them  desolate  from  the  Atlantic  to  the  Rio 
Grande.  No  change  is  possible  until  their  constitutional 
rights  are  restored.  Without  that  restoration  they  cannot 
be  relieved  from  uncertainty.  Their  political  and  social 
system  requires  that  stimulus  which  can  come  only  from, 
a  participation  in  all  those  rights.  This  is  as  necessary 
for  the  nation  at  large  as  for  the  South.  All  reflecting 
men  must  admit  that  the  national  finances,  resting  on  a 
foundation  of  irredeemable  paper,  are  in  a  dangerous  if 
not  alarming  condition.  To  support  the  national  credit 
and  restore  soundness  to  all  'the  business  operations 
of  the  country,  the  old  conditions  of  trade  between  the 
United  States  and  foreign  lands  must  be  reestablished ; 
and  for  this  purpose  it  is  essential  that  the  gi-eat 
Southern  staples  shall  be  reproduced  and  supplied 
for  exports,  which  can  never  be  hoped  for  unless  the 
reconstruction  of  the  Union  is  complete.  Keep  the 
South  under  a  despotic  military  rule,  and  she  will  be 
without  energy.  Treat  her  with  harshness,  and  she  will 


268  THE   RIGHTS   OF  THE   STATES. 

become  discouraged,  or,  still  worse,  rancorous  and  vindic- 
tive. He  who  favors  such  a  policy  would  perpetuate  bit- 
terness, and  ought  to  be  accounted  a  public  enemy. 

It  is  scarcely  twelve  months  since  the  South  was 
engaged  in  the  most  desperate  war  of  modern  times,  with 
every  circumstance  of  passion  and  fury.  To  expect  that 
the  people  should  look  with  positive  affection  on  their 
conquerors,  condemn  their  most  eminent  countrymen  as 
traitors,  and  repudiate  as  abominable  the  principle  for 
which  they  sacrificed  their  fortunes  and  staked  their  lives 
is  beyond  all  reason.  It  is  enough  if  they  know  themselves 
beaten,  accept  the  results  without  reserve,  cherish  no  idea 
of  deferred  rebellion,  and  are  prepared  to  return  to  their 
former  position  with  a  resolution  to  perform  all  their 
duties  as  citizens,  and  a  resolution  to  receive  the  warmest 
impressions  that  time  and  intercourse  may  bring.  More 
cannot  be  expected  ;  but  if  more  is  desired,  it  can  be  se- 
cured only  by  the  policy  that  the  radicals  so  fanatically 
denounce.  If  the  citizen  of  the  South  is  to  be  made  to 
look  on  the  Union  as  he  did  ten  years  ago,  it  can  only  be 
accomplished  by  liberal  and  conciliatory  conduct  on  the 
part  of  the  government,  passive  acquiescence  in  a  cordial 
sympathy,  —  by  kind  and  generous  treatment.  Radical 
policy  is  stultified  by  its  own  professions.  Radicals  pre- 
tend to  desire  a  more  sympathizing  South  than  they  have, 
and  then,  to  improve  Southern  feeling,  they  propose  to 
inflict  political  disgrace  and  humiliation  on  the  Southern 
people.  They  pronounce  them  to  be  still  disaffected  and 
not  sufficiently  well  affected,  and  by  way  of  conciliating 
them  would  condemn  them  to  alienation  and  outlawry.  No 
reasonable  person  can  expect  a  Southerner  to  look  upon  the 
United  States  government  exactly  like  a  New  Englander. 
Enough  for  purpose  of  prudent  reconstruction  if  the 
States  lately  in  secession  have  abandoned  all  idea  of  inde- 
pendence, and  are  prepared  to  make  the  best  of  their  posi- 


THE   RIGHTS   OF  THE   STATES.  269 

tion  as  members  of  the  Union  once  more.  The  rest  must 
be  a  work  of  time,  and  will  be  accomplished  most  speedily 
and  surely  by  the  President's  policy.  He  does  not  claim 
to  swamp  the  South  with  black  voters,  or  place  the  negro 
in  perilous  antagonism  to  the  white.  He  asks  only  profes- 
sion of  political  honesty,  —  that  the  South  shall  forego 
their  views  of  secession,  acknowledge  and  confirm  the 
abolition  of  slavery  now  and  forever,  deal  fairly  with  the 
enfranchised  slave,  and  repudiate  the  debt  contracted  for 
the  purpose  of  rebellion  ;  and  then  open  the  doors  of  Con- 
gress and  restore  the  Union.  The  radicals  desire  impossi- 
bilities, require  the  South  humbly  and  thankfully  to  kiss 
the  rod  after  the  fashion  they  prescribe.  The  first  is  a 
policy  of  moderation  and  promise,  and  will  bring  back  the 
South  to  those  sentiments  of  perfect  concord  that  the  radi- 
cals pretend  to  demand.  The  second  is  a  policy  of  provo- 
cation and  oppression  continued  after  victory,  and  must 
intensify  and  perpetuate  the  very  hostility  which  it  is 
intended  to  expurgate. 


THE   LOUISIANA   STATE   LOTTERY. 

[Mr.  Hunt  was  anxious  that  the  State  of  Louisiana  should 
refuse  all  legislative  aid  to  the  Louisiana  State  Lottery.  But 
a  few  years  before  his  death  he  wrote  a  number  of  articles 
denouncing  the  business  of  lotteries  generally,  and  particularly 
the  existence  of  the  Louisiana  State  Lottery.  His  views  are 
expressed  in  the  following  paper.] 

LOTTERIES  fall  within  the  class  of  hazardous  con- 
tracts. A  contract  is  hazardous  when  the  performance 
of  that  which  is  one  of  its  objects  depends  upon  an  un- 
certainty. The  word  "  hazard  "  means  chance,  risk.  In  a 
state  of  nature  every  individual  is  obliged  to  bear  the  en- 
tire burden  of  his  own  destiny ;  in  a  state  of  society  lie  is 
able,  at  least  partially,  to  relieve  himself  of  the  burden 
by  dividing  it  with  or  shifting  it  upon  others.  This  is  the 
principal  object  of  contracts  of  hazard.  They  spring 
from  our  hopes  and  from  our  fears.  Some  persons  desire 
to  tempt  Fortune  ;  others,  to  secure  themselves  against  her 
caprices.  Accordingly,  we  find  that  in  every  age  there 
has  existed  a  traffic  or  dealing  in  regard  to  things  uncer- 
tain and  eventual.  The  most  ancient  laws  known  to  us 
prove  that  men  have  constantly  sought  to  grasp  and 
include  within  their  compacts  and  agreements  things 
which  they  can  scarcely  attain  by  their  own  weak  pre- 
science. They  have  undertaken  to  subject  to  calculations 
and  speculations  that  which  does  not  belong  to  us,  and 
is  beyond  human  control,  hazard  itself,  mere  chance  to 
weigh  destiny  and  calculate  the  future.  The  effect  or 
result  of  these  agreements  is  obvious,  and  witnessed  every 


THE   LOUISIANA   STATE   LOTTERY.  271 

day.  We  increase  and  multiply  our  possessions  and 
wealth  by  assigning  an  actual  value  to  probabilities  more 
or  less  remote  ;  mere  expectations  become  real  riches  ; 
evils  that  otherwise  may  perchance,  some  day,  be  too  real 
and  afflicting  are  averted  or  alleviated  in  advance  by  the 
wisdom  of  our  arrangements  and  combinations.  We 
render  innocuous  the  blows  of  fate  against  individuals  by 
associating  to  divide  their  force,  and  sharing  it  when 
divided  and  distributed. 

The  statement  of  the  principle  of  contracts  of  hazard  is 
a  sufficient  justification  of  them.  What  can  be  more  in 
accordance  with  an  enlarged  and  enlightened  social  justice, 
what  more  legitimate,  than  to  make,  as  it  were,  a  common 
stock  of  our  fears,  our  hopes,  and  all  our  affections,  so  as 
not  to  leave  entirely  to  chance  that  which  may  be  regu- 
lated by  prudence  and  consultation,  but  to  aid  one  another 
by  salutary  and  beneficial  compacts  in  dividing  and  run- 
ning with  less  danger  the  risks  of  life  ? 

But  this  reasoning  is  not  applicable  to  every  species  of 
hazardous  and  aleatory  contracts.  There  is  a  great  dif- 
ference between  a  contract  that  depends  upon  an  uncertain 
event  and  a  contract  that  has  no  other  cause  or  considera- 
tion whatever  than  the  uncertainty  of  an  event.  The  first 
may  be  supported  and  favored  on  considerations  of  private 
individual  and  public  good.  The  latter  is  without  any 
useful  rational  motive. 

There  can  be  no  valid  contract  without  a  cause  or  con- 
sideration. And  the  law  requires  something  more  solid 
and  real  than  an  extravagant  and  wild  desire  of  trusting 
to  the  caprices  of  fortune  to  serve  as  a  lawful  foundation 
or  just  cause  of  obligations  among  men.  By  way  of 
examples,  a  gambling  contract  is  first  examined,  and  then 
a  contract  of  insurance. 

What  is  the  cause  or  consideration  upon  which  the 
gambling  contract  rests  ?  Nothing  but  the  uncertainty 


272  THE   LOUISIANA   STATE   LOTTERY. 

of  gain  or  loss.  It  is  impossible  to  assign  another  cause. 
Two  gamesters  enter  into  an  agreement  as  to  a  stipulated 
sum.  Each,  relying  on  his  own  good  fortune  and  confi- 
dent that  he  will  gain  it,  leaves  the  disposal  of  it  to  the 
blind  arbitrament  of  chance.  The  desire  and  the  hope  of 
gain  are  the  only  motives  that  induce  the  parties  to  enter 
into  the  contract.  This  desire  and  this  hope  depend  upon 
no  action  and  look  to  no  reciprocity  of  services.  Each 
gamester  hopes  only  in  his  own  good  fortune,  and  can 
gratify  his  desire  only  by  the  misfortune  of  the  other. 
He  can  be  happy  only  at  the  expense  of  others,  and  in 
their  misery,  lie  is  reduced  to  envy  and  curse  the  good 
that  comes  to  them  at  his  expense,  and  to  rejoice  over 
their  ruin.  In  contrast  to  ordinary  contracts  which  give 
employment  to  labor  and  bring  men  together  in  social 
friendship,  these  gaming  contracts  isolate  and  keep  them 
apart,  encourage  idleness  by  separating  the  idea  of  gain 
from  that  of  labor,  and  stifle  all  kindly  sentiment. 
Where  the  object  is  an  ill-regulated  desire  of  gain,  of 
enriching  one's  self  at  the  expense  of  another  without 
doing  him  or  the  community  any  service,  the  contract  is 
contrary  to  good  morals  and  the  fundamental  principles 
of  society. 

On  the  other  hand,  when  contracts  of  insurance  are 
carefully  examined  and  considered,  it  will  be  at  once  per- 
ceived that,  although  they  are  based  upon  the  uncertainty 
of  an  event,  they  are  founded  upon  considerations  of 
individual  and  general  public  gooJ  that  entitle  them  to 
the  favor  of  the  law. 

Property,  in  spite  of  all  that  may  be  done  by  govern- 
ment and  the  vigilance  of  individuals,  must  still  be 
exposed  to  casualties  by  fire,  shipwreck,  and  other  un- 
foreseen disasters.  Hence  it  is  important  to  inquire, 
when  they  do  occur,  how  such  unavoidable  losses  may  be 
rendered  less  injurious.  The  conflagration  of  a  sugar- 


THE   LOUISIANA   STATE   LOTTERY.  273 

mill  or  cotton-mill,  or  the  loss  of  a  ship  at  sea,  would 
press  heavily  on  the  richest  individual.  But  were  the 
loss  distributed  among  several  individuals,  each  would 
feel  it  proportionally  less  ;  and  provided  the  number  of 
those  among  whom  it  was  distributed  were  very  consider- 
able, it  would  hardly  occasion  any  sensible  inconvenience 
to  any  one  in  particular.  Hence  the  advantage  of  indi- 
viduals combining  to  lessen  the  injury  arising  from  the 
accidental  destruction  of  property.  It  is  this  diffusion 
of  loss  over  a  wide  surface  and  the  valuation  of  the  risk 
that  form  the  employment  of  those  engaged  in  insurance. 
The  contract  of  insurance  is  a  contract  of  indemnity.  Its 
very  essence,  its  sole  object,  is  indemnity,  to  prevent  the 
assured  from  suffering  loss  by  means  of  any  of  the  perils 
insured  against.  Its  whole  spirit  would  be  violated  if  the 
assured  could  make  the  occurrence  of  any  such  casualties 
a  means  of  gain,  for  this  would  be  to  give  him  an  interest 
in  procuring  losses,  which  would  be  contrary  to  every  prin- 
ciple of  public  policy. 

From  these  remarks  we  turn  to  a  more  special  notice 
and  consideration  of  lotteries,  their  nature  and  their  ef- 
fects upon  society  for  good  or  evil. 

Webster,  in  his  dictionary,  has  given  us  a  correct 
definition  of  the  term  "  lottery,"  and  has  accompanied  it 
with  a  wise  and  practical  remark  as  to  the  effects  of 
lotteries  in  general,  namely :  "  Lottery,  a  scheme  for  the 
distribution  of  prizes  by  chance,  or  the  distribution  itself. 
Lotteries  are  often  authorized  by  law,  but  many  good 
men  believe  them  immoral  in  principle,  and  almost  all 
men  concur  in  the  opinion  that  their  effects  are  per- 
nicious." 

All  philosophers,  moralists,  and  writers  of  eminence  of 
the  present  day  unite  in  condemning  lotteries.  All  ency- 
clopaedias, dictionaries  of  the  sciences  and  arts,  store- 
houses not  only  of  literature,  but  also  of  history,  the 
18 


274  THE   LOUISIANA   STATE   LOTTERY. 

principal  facts,  principles,  laws,  and  practices  of  different 
countries  and  peoples,  digested  under  proper  titles,  con- 
tain conclusive  proof  of  their  impolicy  and  mischievous 
effects. 

The  term  "  lottery  "  may  be  applied  to  any  process  of  de- 
termining- prizes  by  lot,  whether  the  object  be  amusement, 
or  gambling,  or  public  profit.  The  overweening  conceit 
which  the  greater  part  of  men  have  of  their  own  abilities 
is  an  ancient  evil,  remarked  by  the  philosophers  and 
moralists  of  all  ages.  Their  absurd  presumption  in  their 
own  good  fortune  has  been  less  taken  notice  of.  It  is, 
however,  if  possible,  still  more  universal.  There  is  no 
man  living  who,  when  in  tolerable  health  and  spirits,  has 
not  some  of  it.  The  chance  of  gain  is  by  every  man  more 
or  less  overvalued,  and  the  chance  of  loss  is  by  most  men 
undervalued. 

That  the  chance  of  gain  is  naturally  overvalued  we 
may  learn  from  the  universal  success  of  lotteries.  The 
world  never  saw,  nor  will  it  ever  sec,  a  perfectly  fair 
lottery,  or  one  in  which  the  whole  gain  compensated  the 
whole  loss  —  because  the  undertaker  would  make  nothing 
by  it. 

In  the  state  lotteries,  the  tickets  are  really  not  worth 
the  price  which  is  paid  by  the  original  subscribers,  and 
yet  commonly  sell  in  the  market  for  twenty,  thirty,  and 
sometimes  forty  per  cent  advance.  The  vain  hope  of 
gaining  some  of  the  great  prizes  is  the  sole  cause  of  this 
demand.  The  soberest  people  scarce  look  upon  it  as  a 
folly  to  pay  a  small  sum  for  the  chance  of  gaining  ten  or 
twenty  thousand  dollars,  though  they  know  that  even  that 
sum  is  perhaps  twenty  or  thirty  per  cent  more  than  the 
chance  is  worth. 

In  a  lottery  in  which  no  prize  exceeded  one  hundred 
and  fifty  dollars,  though  in  other  respects  it  approached 
much  nearer  to  a  perfectly  fair  one  than  the  common  state 


THE   LOUISIANA   STATE   LOTTERY.  275 

lotteries,  there  would  not  be  the  same  demand  for  tickets. 
In  order  to  have  a  better  chance  for  some  of  the  great 
prizes,  some  people  purchase  several  tickets,  and  others 
small  shares  in  a  much  greater  number.  There  is  not, 
however,  a  more  certain  proposition  in  mathematics  than 
that  the  more  tickets  you  adventure  upon,  the  more  likely 
you  are  to  be  a  loser.  Adventure  upon  all  the  tickets  in 
the  lottery,  and  you  lose  for  certain  ;  and  the  greater  the 
number  of  your  tickets,  the  nearer  you  approach  to  this 
certainty.1 

The  "  American  Cyclopedia "  says  :  "  Lottery  is  a 
sort  of  gaming  contract,  by  which,  for  a  valuable  consid- 
eration, one  may,  by  favor  of  lot,  obtain  a  prize  of  value 
superior  to  the  amount  or  value  of  that  which  he  risks." 
The  word  is  derived  from  "  lotto,"  a  lot  which  decides. 
Almost  all  modern  states  have,  at  some  periods  of  their 
history,  employed  lotteries  as  a  means  of  revenue,  but 
they  have  always  been  found  to  exert  a  mischievous  in- 
fluence upon  the  people.  The  poor  are  invited  by  them 
rather  than  the  rich.  They  are  diverted  from  persis- 
tent labor  and  patient  thrift  by  the  hope  of  sudden  and 
splendid  gains  ;  and  as  a  large  part  of  their  receipts  is 
withheld,  a  necessary  loss  falls  upon  a  class  which,  of 
all  in  the  community,  can  least  afford  to  bear  it.  Be- 
tween 1816  and  1828,  the  French  government  derived  an 
annual  income  of  14,000,000  francs  from  lotteries.  In 
1829,  a  law  for  the  extinction  and  suppression  of  the 
royal  lottery  abolished  and  closed  its  offices  in  28  de- 
partments, —  supprimant  d'abord  les  burecntx  de  28  de- 
jiartements.  In  January  of  the  next  year,  525,000 
francs  more  wei-e  found  to  be  in  the  savings-banks  in 
Paris  alone  than  in  the  same  month  of  the  preceding 
year. 

We  repeat  that  lotteries  have  been  established  and  en- 
1  Adam  Smith,  Wealth  of  Nations. 


276  THE   LOUISIANA   STATE   LOTTERY. 

couraged  by  some  states  for  the  purpose  of  raising  a 
revenue. 

In  the  Italian  republics  of  the  sixteenth  century,  the 
lottery  principle  was  applied  to  encourage  the  sale  of  mer- 
chandise. The  lotto  of  Florence  and  the  semiharis  of 
Genoa  are  well  known ;  and  Venice  established  a  monop- 
oly, and  drew  a  considerable  revenue  for  the  state.1 

In  France,  the  system  of  state  lotteries  for  revenue  was 
very  long  carried  on  by  the  government,  and  had  a  per- 
nicious and  demoralizing  effect  on  French  society,  - —  a 
demoralization  greater  even  than  that  produced  in  Eng- 
land by  a  like  cause.  The  eloquent  Bishop  of  Autun 
denounced  lotteries  as  no  better  than  the  lowest,  vile 
street  games  of  the  worst  description  ;  and  the  wise  and 
illustrious  Turgot  condemned  state  lotteries  as  an  im- 
moral, unequal,  unjust  source  of  public  revenue.  State 
lotteries  have  been  abolished  in  France,  as  already  men- 
tioned. 

In  England,  the  earliest  lottery  of  which  there  is  any 
record  was  in  1509,  when  40,000  chances  were  sold  at 
ten  shillings  each.  The  prizes  consisted  of  articles  of 
plate,  and  the  profit  was  employed  for  the  repair  of  cer- 
tain harbors.  The  spirit  of  gambling  in  this  direction 
appears  to  have  materially  increased  in  the  course  of  the 
following  century,  for  private  lotteries  were,  early  in  the 
reign  of  Queen  Anne,  suppressed  as  "public  nuisances.'" 

The  financial  condition  of  France,  Id  pcinirle  dcs 
finai)(.-('N,  caused  her  to  create  in  1700  a  public  lottery  of 
ten  millions,  which  was  soon  followed  by  the  establish- 
ment of  other  lotteries  in  the  provinces  :  and  in  1777  a 
special  administration  of  them  was  organized.  A  decree 
of  the  convention  (<ln  ',18  Von),  an  JJ)  continued  the  lot- 
tery of  France,  and  suppressed  all  other  lotteries  of  every 
kind.  I >ut  one  month  later  a  decree  abolished  lotteries 
1  Encyclopedia  Britamiica. 


THE  LOUISIANA   STATE   LOTTERY.  277 

entirely.  Fleau  invente,  said  the  deputy  who  moved 
for  the  abolition,  par  le  despotisme,  pour  faire  taire  le 
peuple  en  sa  misere,  en  le  leurrant  d'une  esperance  qui 
aggravate  sa  calamite.  Reestablished  by  the  Directory, 
the  national  lottery  continued  to  subsist  during  the  Con- 
sulate, the  Empire,  and  the  Restoration ;  and  lotteries 
of  every  kind  were  again  prohibited  by  the  law  of  May, 
1836. 

The  evils  attendant  on  lottery  speculations  attracted  in 
1819  the  attention  of  the  English  people,  and  were  thor- 
oughly discussed  in  Parliament.  In  1823  public  senti- 
ment had  become  so  far  adverse  to  the  further  approval 
of  them  that  a  lottery  was  tolerated  in  that  year  only 
because  it  was  to  be  the  last ;  and  the  act  was  accom- 
panied by  provisions  for  the  future  suppression,  entire 
suppression,  of  lotteries,  which  had  long  before  been 
denounced  by  Parliament  as  "  common  nuisances,  by 
which  children,  servants,  and  other  unwary  persons  had 
been  ruined."  The  "  Cyclopedia  of  Universal  Know- 
ledge," London,  states  correctly  that  lotteries  have  been 
very  common  in  the  United  States,  and  have  been  sanc- 
tioned by  the  several  States,  not  so  much  as  a  means  of 
raising  money  for  state  purposes  as  with  the  view  of 
encouraging,  as  they  supposed,  many  useful  objects,  such 
as  canals,  schools,  etc.  It  adds:  "The  numerous  frauds 
practiced  in  lottery  schemes  in  the  United  States  have 
perhaps  done  more  to  open  the  eyes  of  the  people  to  the 
mischief  resulting  from  them  than  any  investigation  into 
the  true  principles  of  lotteries."  Perhaps  so.  But  the 
sight  of  the  mischief  and  the  knowledge  of  its  cause  have 
led  wise  and  reflecting  men  carefully  to  examine  the  na- 
ture and  character  of  lotteries,  the  object  which  the  pro- 
prietors and  undertakers  have  in  view,  the  scheme  and 
manner  of  conducting  them,  the  temptation  held  out  to 
purchasers  of  tickets,  the  practical  effect  on  the  poor 


278  THE   LOUISIANA   STATE    LOTTERY. 

and  deluded  class  of  the  people,  the  certain  success  of 
the  undertakers  and  proprietors  of  the  lotteries  ;  and, 
after  careful  examination  and  consideration,  to  pronounce 
them  unworthy  of  the  favor  and  support  of  a  good  gov- 
ernment. 

The  impolicy  and  ill  effects  of  a  state's  resort  to  a 
lottery,  instead  of  to  more  honest  direct  taxation,  to  in- 
crease its  revenue,  require  no  further  exposure.  A  phil- 
osophic, learned,  and  vigorous  writer  on  political  economy, 
in  182G,  sternly  remarked :  "  Taxes  by  way  of  lottery 
have  received  the  decided  reprobation  of  every  good 
writer  in  Europe.  What  right  has  a  government  to  use 
a  gallows  that  encourages  lotteries  ?  It  is  really  deplor- 
able that  at  this  day  writers  on  political  economy  have 
to  preach  against  a  system  of  gambling,  the  parent  of 
improvident  adventure,  of  fraud,  of  theft,  of  disappoint- 
ment, of  despair,  —  a  system  encouraged  by  law,  encour- 
aged by  the  clergy  !  "  (See  Gaesit  sur  les  revenues  pub- 
liques.)  Elsewhere,  in  a  note  to  the  rule  "  that  no  law 
should  restrain  or  control  the  acquisition  or  disposal  of 
property  but  what  the  good  of  society  calls  for,"  he  adds  : 
"  Perhaps  what  the  manifest  principles  of  morality  re- 
quire. Can  a  tax  upon  gambling-houses  be  defended? 
Can  lotteries  be  defended?  Especially  in  this  country, 
where  our  financiers  are  not  driven  to  their  wits'  end  to 
find  out  ways  and  means,  etc.  Even  the  clergy  .  .  .  seem 
not  averse  to  build  churches  by  lotteries.  This  is  calling 
in  the  good  offices  of  the  devil  to  aid  in  building  the 
house  of  (rod  !  " 

Mr.  Jefferson,  on  his  retirement  from  the  presidency  of 
the  United  States  to  the  station  and  pursuits  of  a  private 
patriot  citizen,  applied  to  the  Virginia  legislature  for 
permission  to  sell  his  own  property  freely  to  pay  his  own 
debts :  to  sell  it,  —  not  to  sacrifice  it,  not  to  have  it 
gobbled  ii])  by  speculators  to  make  fortunes  for  them- 


THE   LOUISIANA   STATE   LOTTERY.  279 

selves,  leaving-  unpaid  those  who  had  trusted  to  his  good 
faith,  and  himself  without  resource  in  the  last  and  most 
helpless  stage  of  life.  This  induced  him  to  prepare 
an  essay  entitled  "  Thoughts  on  Lotteries,"  February, 
1826.1  * 

It  was  an  adroit  and  successful  address  to  the  legisla- 
ture to  allow  him  to  dispose  of  his  large  landed  estate, 
to  repair  his  fortune  broken  by  unavoidable  neglect  in  a 
long  course  of  important  public  services  at  home  and 
abroad,  —  an  ingenious,  elaborate,  eloquent,  but  sophis- 
tical petition,  skillfully  flattering  the  pride  and  lauding 
the  past  action  of  the  legislature.  It  makes  a  grand 
display  of  good  works  effected  by  the  granting  of  lotteries 
for  useful  purposes,  namely :  for  public  revenues  of  the 
State  of  Virginia,  for  schools  and  colleges,  for  public 
roads  and  canals,  for  religious  societies,  for  private  so- 
cieties, for  the  benefit  of  private  individuals. 

But,  properly  weighed,  it  shows  a  mistake,  a  grave 
error,  in  the  policy  of  legislation  then  prevalent  in  the 
Old  Dominion,  —  the  use  of  a  bad  passion  in  man,  of 
the  love  of  gain  without  labor,  of  the  hazard  of  the  small 
means  of  the  poor,  insufficient  often  for  the  comfort  and 
support  of  their  families  or  of  themselves  individually, 
to  obtain  large  sums  on  remote  possibilities. 

Doubtless  some  good  has  resulted  occasionally  from 
lotteries  as  described  :  but  the  means  of  obtaining  such 
good  are  not  to  be  lost  sight  of,  and  not  to  be  employed 
if  they  are  pernicious  to  public  morals,  if  they  excite  the 
lust  of  the  greater  number,  and  especially  of  the  poor,  to 
jeopard  their  hard  earnings  and  small  means  on  false 
and  delusive  schemes  of  profit  without  labor. 

Mr.  Jefferson,  not  wisely  and  truly,  would  artfully  and 
for  his  purpose  resolve  all  the  pursuits  of  human  industry 
into  games  of  chance.  He  says :  "  In  all  these  pursuits 
1  Jefferson's  Works,  vol.  ix.  p.  500. 


280  THE   LOUISIANA   STATE   LOTTERY. 

you  stake  some  one  thing  against  another  which  you  hope 
to  win.  But  the  greatest  of  all  gamblers  is  the  farmer. 
He  risks  the  seed  he  puts  into  the  ground,  the  rent  he 
pays  for  the  ground  itself,  the  year's  labor  on  it,  and  the 
wear  and  tear  of  his  cattle  and  gear,  to  win  a  crop  which 
the  chances  of  too  much  or  too  little  rain  and  general 
uncertainty  of  weather,  insects,  wastes,  etc.,  often  make 
a  total  or  partial  loss." 

This  is  certainly  an  abuse  of  terms  and  of  right  reason. 
God  gives  man  reason  and  the  means  of  providing  for 
himself.  The  use  of  that  reason  and  of  those  means  in 
the  practical  labor  of  production  cannot  be  justly  and 
fairly  assimilated  to  the  remote  chance  or  probability  of 
gain  in  a  lottery.  The  ways  of  Providence  are  not 
always  known  to  us.  We  cannot  foresee  storms  and 
tempests,  earthquakes  and  inundations.  But  we  have 
good  ground  to  rely  upon  our  labor  for  protection  and 
support  in  the  justice,  mercy,  and  loving-kindness  of  the 
Creator  who  has  fitted  us  for  our  state,  and  not  made  us 
for  suffering  and  want. 

Mr.  Jefferson  himself  is  obliged  to  qualify  his  system 
of  chance  in  all  the  pursuits  of  life.  There  are  some  pur- 
suits, he  admits,  entirely  unproductive,  doing  good  to 
none,  injury  to  many,  so  tempting  and  seducing  that  it 
is  the  duty  of  society  to  suppress  them  entirely  ;  but  lot- 
teries which  had  been  found  useful  by  the  legislature  of 
Virginia  to  the  whole  State,  to  public  revenues,  to  private 
societies,  and  to  individuals,  under  circumstances  which 
claimed  favor  or  indulgence,  are  placed  under  the  discre- 
tion of  the  legislature,  to  which  he  submits  whether  the 
devotion  of  threescore  years  and  one  of  his  life,  devoted 
uninterruptedly  to  the  service  of  his  country,  to  good 
government,  to  liberty,  to  a  share  in  the  merits  of  the 
great  \vork  of  American  independence  and  in  the  benefits 
of  the  Constitution  of  the  United  States  wisely  adminis- 


THE   LOUISIANA  STATE   LOTTERY.  281 

tered,  —  whether  he  or  his  situation  would  justify  the 
legislature  in  permitting-  him  to  avail  himself  of  the  mode 
of  selling1  by  lottery  for  the  purpose  of  paying  his  debts. 

The  raising  of  money  by  lotteries  for  public  pui'poses 
in  Virginia  had  its  origin  in  times  of  public  disturbance 
and  general  poverty.  It  was  a  sort  of  legislative  ruse  to 
draw  money  from  individuals  in  small  sums  by  operating 
on  the  chance  prospect  of  gain,  when  laying  of  a  tax  upon 
property  avowedly  for  the  same  purpose  would  have 
excited  general  complaint  and  opposition.  The  system 
was  popular  and  of  long  continuance.  It  was  under  the 
prevalence  of  that  system  that  Mr.  Jefferson  sought 
relief  from  poverty  in  his  old  age  by  a  petition  for  leave 
to  dispose  of  his  large  but  unprofitable  landed  estate  by  a 
lottery.  Virginia  granted  the  prayer,  but  it  would  have 
been  better  for  her  fame  to  have  relieved  her  noble  son, 
the  author  of  the  Declaration  of  American  Independence, 
by  a  special  appropriation  or  tax  for  the  purpose. 

More  than  half  a  century  has  since  elapsed.  At  the 
present  day  the  moral  and  enlightened  patriot,  no  longer 
deceived  and  misled  by  the  false  and  delusive  expecta- 
tion of  immoral  gain,  condemns  the  system  of  lotteries  as 
inconsistent  with  and  prejudicial  to  good  morals,  and  in- 
jurious to  the  pursuits  of  useful  industry  by  which  man 
can  alone  provide  properly  for  his  wants,  and  secure  the 
peace,  prosperity,  and  good  order  of  civilized  life. 

Edward  Livingston,  one  of  the  wisest,  most  philosophic 
and  eminent  statesmen  of  our  country,  in  a  report  to  the 
legislature  of  Louisiana  on  a  criminal  code  prepared  by 
him  under  the  appointment  of  the  Genei'al  Assembly  of 
the  State,  thus  stated  "  a  common  fault  in  the  legislation 
of  our  country.  We  shape  our  laws  to  fit  the  principal 
end  which  is  proposed  without  sufficiently  examining 
whether  the  same  object  could  be  obtained  by  other 
means,  .  .  .  that  avoid  dangers  which,  in  our  eagerness 


282  THE   LOUISIANA   STATE   LOTTERY. 

to  obtain  some  doubtful  good  by  a  straightforward  off- 
hand legislation,  have  totally  escaped  our  attention. 
Thus,  to  raise  a  revenue  for  some  useful  purpose,  we 
license  gambling  -  houses ;  to  promote  education  and  to 
provide  for  the  building  of  churches,  we  establish  lotteries. 
.  .  .  We  do  this  without  sufficiently  inquiring  whether 
the  requisite  revenue  might  not  be  obtained  by  some  other 
and  better  means  than  giving  the  sanction  of  law  to  the 
worst  of  vices  ;  whether  a  purer  source  could  not  be  found 
from  which  to  draw  the  means  of  supporting  religious 
and  scientific  education  than  one  that  corrupts  morals, 
encourages  idleness,  and  leads  the  poorer  classes  to 
poverty  and  vice." 

This  view  of  the  impolicy  and  immoral  tendency  of 
lotteries  would  lead  a  member  of  Congress,  duly  regard- 
ful of  the  general  good  and  dignity  of  the  nation,  to 
oppose  any  legislation  in  support  of  a  lottery,  however 
specious  in  the  purposes  it  proposed,  and  any  offer  of 
employment  to  favor  and  procure  such  legislation.  The 
legal  rights  of  the  lottery  company,  whatever  they  may 
be,  can  be  properly  settled  in  a  due  course  of  law  without 
any  undertaking  on  his  part,  and  non-intervention  in  a 
matter  coming  before  Congress  touching  the  lottery  would 
leave  him  free  from  all  embarrassment  to  act  according 
to  his  views  of  justice,  public  policy,  and  constitutional 
duty. 

The  special  instance  of  the  Louisiana  State  Lottery 
Company  will  now  be  examined. 

Louisiana,  in  1845,  ordained  as  follows  in  the  Constitu- 
tion of  the  State  :  "  No  lottery  shall  lie  authorized  by  this 
State,  and  the  buying  and  selling  of  lottery  tickets  within 
the  State  is  prohibited/'  This  Constitution  was  revised 
and  amended  in  1852  :  many  articles  were  added  to  it, 
many  altered  or  modified,  but  the  Constitution  of  1852 
retained  the  fundamental  law  of  1845  in  regard  to  lot- 


THE   LOUISIANA  STATE   LOTTERY.  283 

teries  and  repeated  in  its  very  words,  ipsissimis  verbis : 
"No  lottery  shall  be  authorized  by  this  State,  and  the 
buying  and  selling  of  lottery  tickets  within  the  State  is 
prohibited." 

In  the  "  compilation  of  the  state  Constitutions  and  the 
Constitution  of  the  United  States,"  printed  by  order  of 
Congress,  we  find,  in  a  note  to  the  publication  of  "  the 
Constitution  of  Louisiana,  1864,"  p.  711,  that  "  the  Con- 
stitution was  formed  by  a  convention  which  met  at  New 
Orleans  under  the  auspices  of  General  Banks,  then  com- 
manding the  military  department  of  the  Gulf,  April,  1864, 
was  submitted  to  the  people  in  September,  and  was  pro- 
claimed ratified  by  a  vote  of  6,836  against  1,566  ;  but  the 
state  government  organized  under  it  was  not  recognized 
by  Congress." 

The  small  vote  taken  on  the  so-called  Constitution  of 
1864  shows  that  it  had  no  real  popular  character,  consider- 
ation, and  authorization,  and  was  not  an  expression  of  the 
opinion  of  the  people  of  Louisiana.  It  was  not  in  any 
just  and  honest  sense  a  ratification  of  the  Constitution 
submitted  to  them.  The  truth  of  this  conclusion  is  con- 
firmed by  the  fact  that  a  new  Constitution,  superseding 
that  of  1864,  was  formed  by  a  convention  called  under  the 
reconstruction  acts  of  Congress,  which  met  in.  December, 
1867,  and  completed  its  work  in  1868.  The  new  Consti- 
tution was  submitted  to  the  people  of  Louisiana  in  1868, 
and  was  ratified  by  a  vote  of  66,152  against  48,759. 

The  Constitution  of  1864  contained  the  following  article, 
to  wit :  "  Constitution  of  Louisiana.  1864,  Article  116.  The 
legislature  shall  have  the  power  to  license  the  selling  of 
lottery  tickets  and  the  keeping  of  gambling-houses.  Said 
houses  in  all  cases  shall  be  on  the  first  floor,  and  kept 
with  open  doors,  but  in  all  cases  not  less  than  -$10,000 
per  annum  shall  be  levied  as  a  license  or  tax  on  each 
vender  of  lottery  tickets  and  on  each  gambling-house, 


284  THE   LOUISIANA   STATE   LOTTERY. 

and  $500  on  each  tombola."  The  Constitution  of  1868 
contained  no  provision  for  the  granting  or  the  prohibit- 
ing1 of  lotteries,  or  the  licensing  of  gambling-houses. 

It  thus  appears  that  Louisiana,  by  her  state  Constitu- 
tions from  1845  to  the  civil  war  of  secession,  under  the 
dominion  of  peace  and  American  moral  influences,  or- 
dained that  no  lotteries  should  be  authorized  by  the 
State,  and  that  the  buying  and  selling  of  lottery  tickets 
was  prohibited.  And  it  further  appears  that  a  power 
conferred  upon  the  legislature  to  license  the  selling  of 
lottery  tickets  and  the  keeping  of  gambling-houses  was 
the  offspring  of  abused  military  authority  and  influence 
for  licentious  and  tyrannical  gain  by  an  anti-American, 
immoral,  and  pretended  exercise  of  constitutional  power. 

The  charter  of  the  Louisiana  State  Lottery  Company 
will  now  be  considered.  The  company  was  incoi-porated 
by  the  state  legislature  in  18G8.  See  Acts  of  Louisiana, 
18G8,  Xo.  25,  p.  24. 

The  first  section  enacts  that,  whereas  many  millions  of 
dollars  have  been  withdrawn  from  and  lost  to  this  State 
by  the  sale  of  Havana  and  other  lottery  tickets,  etc.,  and 
fractional  parts  thereof,  it  shall  hereafter  be  unlawful  to 
sell,  offer,  or  expose  for  sale  any  of  them  or  any  other 
lottery,  except  in  such  manner  and  by  such  persons  as 
shall  be  hereinafter  authorized. 

By  a  provision  in  a  subsequent  part  of  the  act,  any 
person  or  persons  violating  the  above  enactment,  or  the 
rights  and  privileges  herein  granted  to  this  corporation, 
shall  be  liable  to  said  corporation  in  damages  in  a  sum  not 
exceeding  #5,000  nor  less  than  #1,000  for  each  offense  ; 
and  in  a  section  immediately  following  the  term  of  dura- 
tion ot  the  corporation  is  fixed,  to  be  and  continue  during 
twenty-five  years  from  the  first  day  of  January,  1809,  for 
which  time  it  shall  have  tin;  sole  and  exclusive  privilege 
of  establishing  and  authorizing  a  lottery  or  a  series  of 


THE   LOUISIANA   STATE   LOTTERY.  285 

lotteries,  and  selling  and  disposing  of  lottery  tickets,  etc., 
and  fractional  parts  thereof. 

It  was  further  enacted  that  the  corporation  shall  have 
the  sole  right  and  privilege,  during  the  whole  term  of  its 
existence,  to  dispose  of  by  lottery  or  series  of  lotteries  any 
land  it  may  become  possessed  of  by  purchase  or  other- 
wise. 

The  fifth  article  of  incorporation,  in  its  first  section, 
provides :  "  The  corporation  shall  pay  to  the  State  of 
Louisiana  the  sum  of  $40,000  per  annum,  payable  quar- 
terly in  advance  to  the  state  auditor,  who  shall  deposit 
it  in  the  treasury  of  the  State,  to  be  credited  to  the 
educational  fund.  And  said  corporation  shall  be  exempt 
from  all  other  taxes  and  licenses  of  any  kind  whatever, 
whether  from  state,  parish,  or  municipal  authorities." 

The  charter  of  the  company  should  be  further  examined 
and  scrutinized.  The  act  creating  the  corporation  is  en- 
titled "  An  act  to  increase  the  revenues  of  the  State,  and 
to  authorize  the  incorporation  and  establishment  of  the 
Louisiana  State  Lottery  Company,  and  to  repeal  certain 
acts  now  in  force." 

The  company  is  then  constituted  and  declared  a  cor- 
poration, with  the  powers  and  privileges  set  forth  in  the 
act,  and  for  the  purposes  and  objects  specified  in  articles 
of  incorporation. 

"  Article  1.  The  name  and  title  of  this  corporation  shall 
be  the  Louisiana  State  Lottery  Company,  and  its  domi- 
cile shall  be  in  the  city  of  New  Orleans,  State  of  Louisi- 
ana. 

"  Article  2.  The  objects  and  purposes  of  this  corporation 
are,  first,  the  protection  of  the  State  against  the  great 
losses  heretofore  incurred  by  sending  large  amounts  of 
money  to  other  States  and  foreign  countries  for  the  pur- 
chase of  lottery  tickets  and  devices,  thereby  impoverishing 
our  own  people ;  second,  to  establish  a  solvent  and  reli- 


286  THE   LOUISIANA   STATE   LOTTERY. 

able  home  institution  for  the  sale  of  lottery,  policy,  and 
combination  tickets,  etc.,  and  fractional  parts  thereof,  .  .  . 
to  insure  perfect  fairness  in  the  distribution  of  prizes  ; 
third,  to  provide  means  to  raise  a  fund  for  educational 
and  charitable  purposes  for  the  citizens  of  Louisiana." 
All  to  be  accomplished  through  the  instrumentality  of  the 
Louisiana  State  Lottery ! 

The  title  of  the  act,  the  name  of  the  corporation,  the 
statement  of  the  objects  and  purposes  of  the  company,  are 
alike  deceptive  and  fraudulent. 

The  immoral  character  of  lotteries  has  been  sufficiently 
shown  by  their  pernicious  effects  upon  society,  and  the 
pretended  object  of  the  act,  "  to  increase  the  revenues  of 
the  State,"  is  glaringly  false,  and  too  ridiculous  and  con- 
temptible for  serious  notice. 

The  grant  sought  and  obtained  was  to  enable  the 
corporators,  a  number  of  avaricious  speculators,  to  enrich 
themselves  by  a  lottery  or  delusive  scheme,  at  the  ex- 
pense of  the  people  at  large,  but  chiefly  of  persons  of 
small  means  and  in  narrow  circumstances,  whose  wants 
and  greedy  hopes  of  gain  would  induce  them  to  part  with 
their  small  sums,  for  the  chance,  the  very  remote  and 
improbable  chance,  of  rich  prizes. 

The  grave  and  solemn  declaration  that  the  objects  and 
purposes  of  the  corporation  are,  first,  to  protect  the  State 
from  great  losses  and  the  people  of  the  State  from  im- 
poverishment by  sending  money  abroad  to  purchase  for- 
eign lottery  tickets,  and  second,  for  the  accomplishment 
of  this  great  object,  to  establish  a  home  institution  for 
the  sale  of  lottery  tickets  and  fractional  parts  thereof,  is 
an  audacious  and  deceptive  statement,  a  false  pretense, 
to  obtain  and  secure  to  itself,  the  corporation,  the  custom 
and  support  of  purchasers  of  lottery  tickets. 

This  is  apparent  on  the  face  of  the  act,  which  enacts 
that  the  corporation  shall  continue  twenty-five  years,  and 


THE   LOUISIANA   STATE   LOTTERY.  287 

shall  have  the  sole  and  exclusive  privilege  of  establishing 
a  lottery  or  series  of  lotteries,  and  selling  or  disposing  of 
lottery  tickets  and  fractional  parts  thereof ;  and  subjects 
any  person  selling  or  exposing  for  sale  any  lottery  ticket 
or  fractional  part,  in  violation  of  the  privileges  granted 
to  the  corporation,  to  the  heavy  penalties  stated  already. 
In  1778  an  English  lottery  act  was  passed.  It  limited 
the  subdivision  of  chances  or  fractional  parts  of  the  lottery 
tickets  to  a  certain  portion  or  minimum.  This  was  in- 
tended to  prevent  the  laboring  population  from  risking 
their  earnings ;  but  we  are  told  the  limitation  was  exten- 
sively evaded  by  means  which  aggravated  the  evil ;  and  a 
growing  repugnance  was,  in  consequence,  manifested  in 
Parliament  to  this  method.1  No  minimum  fractional  part 
of  a  ticket  limits  the  Louisiana  Company.  It  is  free  to 
subdivide  its  tickets,  according  to  its  own  interest  and 
policy  and  greed  of  gain. 

The  charter  provides  that,  for  the  sole  and  exclusive 
rights  and  privileges  granted  to  the  company  for  twenty- 
five  years,  —  guaranteed  and  fortified  by  severe  penalty 
against  violation,  —  this  odious  monopoly  of  a  pernicious 
institution,  "  the  corporation  shall  pay  to  the  State  of 
Louisiana  the  sum  of  840,000  per  annum,  .  .  .  which 
sum  shall  be  credited  to  the  educational  fund;  and  the 
said  corporation  shall  be  exempt  from  all  other  taxes 
and  licenses  of  any  kind  whatever,  whether  from  state, 
parish,  or  municipal  authorities."  : 

On  the  first  day  of  August,  1883,  Mr.  M.  A.  Dauphin 
published  an  address  to  the  public,  in  the  "  New  Orleans 
Picayune,''  in  regard  to  the  Louisiana  State  Lottery 
Company,  of  which  he  is  the  president.  He  states  that 
the  company  was  incorporated  for  twenty-five  years  by  the 
legislature  for  educational  and  charitable  purposes,  with  a 

1  Encyclopedia  Britannica. 

-  Acts  of  the  State  of  Louisiana,  1808. 


288  THE   LOUISIANA   STATE   LOTTERY. 

capital  of  $1,000,000,  to  which  a  reserve  fund  of  over 
$550,000  has  since  been  added,  making  together  $1,550,- 
000  ;  its  stock  has  been  sold  at  the  board  of  Louisiana 
brokers  ;  its  standing  is  conceded  by  all  who  investigate. 
Many  of  our  citizens  own  stock  in  the  company.  It  has 
"semi-annual  drawings;"  its  "grand  single  number 
drawings "  take  place  "  monthly ;  "  and  Mr.  Dauphin 
might  have  added,  its  "  combination  numbers  drawings" 
with  one  dollar  tickets,  and  with  their  fractional  mini- 
mum parts  of  twenty-five  cents,  are  made  every  day.  The 
prizes  drawn  in  the  lottery  have  been  promptly  paid,  the 
semi-annual  and  monthly  drawings  have  been  under  the 
supervision  and  management  of  two  popular  citizens,  and 
the  whole  business  of  the  company  has  been  so  cunningly 
and  successfully  conducted  as  not  only  to  add  to  its  capi- 
tal of  $1,000,000  a  reserve  fund  of  over  $550,000,  and  so 
to  the  enhancement  of  its  stock,  but  also  to  enrich  the 
individual  members  of  the  corporation  by  dividends  of 
profits,  calculated  by  them  to  be  realized  from  their 
scheme,  of  not  less  than  hundreds  of  thousands  of  dollars 
per  annum. 

The  declaration  that  the  "'  third  object  of  the  corpora- 
tion was  to  provide  means  to  raise  a  fund  for  educational 
and  charitable  purposes  "'  is  sheer  hypocrisy. 

The  moralist  will  judge  for  himself  of  this  lottery 
mode  of  increasing  the  revenues  of  the  State,  and  raising 
a  fund  for  education  and  charity  for  the  citizens  of 
Louisiana,  by  paying  $40,000  per  annum  for  a  license  to 
plunder  the  public  and  establish  an  odious  and  pernicious 
monopoly. 

It  is  to  be  observed  that  Dauphin's  address  regards 
only  the  prizes  in  the  lottery  between  January,  187!),  and 
the  first  of  August,  1883,  a  period  of  three  years  and 
seven  months  :  and  that  the  payment  by  the  company  of 
$40,000  pur  annum  was  to  be  made  on  the  express  condi- 


THE   LOUISIANA   STATE   LOTTERY.  289 

tion  that  the  corporation  shall  be  exempt  from  all  other 
taxes  and  licenses  of  any  kind  whatever,  whether  state, 
parish,  or  municipal ;  and  that,  according  to  the  rule  of 
uniform  and  equal  taxation  prescribed  in  the  Constitution 
of  Louisiana,  the  taxes  of  the  company  would  far  exceed  the 
price  paid  for  the  exemption.  The  true  aim  of  legislation 
should  be  the  good  and  expediency  of  the  entire  commu- 
nity. The  intention  of  the  legislator  is  to  guard  and  se- 
cure the  equal  rights  of  every  citizen ;  not  to  grant  and 
lavish  upon  a  favorite  extraordinary  privileges  and  ex- 
emptions, in  disregard  of  justice,  the  well-being  and 
morality  of  the  community. 

In  1879,  a  Constitution  superseding  the  state  Constitu- 
tion of  1868  was  adopted,  as  it  has  been  heretofore  stated, 
by  the  people  of  Louisiana.  It  contains  two  articles 
which  will  now  be  noticed  (167  and  172)  :  — 

"  Article  167.  The  General  Assembly  shall  have  au- 
thority to  grant  lottery  charters  or  privileges,  provided 
each  charter  or  privilege  shall  pay  not  less  than  $40,000 
per  annum  into  the  treasury  of  the  State  ;  and  provided, 
further,  that  all  charters  shall  cease  and  expire  on  the 
first  of  January,  1895,  from  which  time  all  lotteries  are 
prohibited  in  the  State." 

The  charter  of  the  so-named  Louisiana  State  Lottery 
Company  was  for  twenty-five  years  from  January  1,  1869, 
and  the  Constitution  of  1879  ordained  that  all  charters 
granted  under  the  grant  of  power  in  Article  167  should 
expire  in  the  same  year,  and  all  companies  should  pay 
into  the  state  treasury  $40,000  per  annum  for  each  char- 
ter ;  thus  seeming  to  place  new  lottery  charters  on  an 
equal  legal  footing  with  that  already  in  existence.  But 
it  omitted  to  grant  any  new  lottery  an  exemption  from 
taxes  of  any  and  every  kind,  in  consideration  of  the 
$40,000  per  annum  to  be  paid  the  State,  thus  destroying 
the  equality  of  privileges. 
19 


290  THE   LOUISIANA   STATE   LOTTERY. 

The  same  article  declares  that  the  charter  of  the  Lou- 
isiana State  Lottery  Company,  granted  in  18G8,  is  recog- 
nized as  a  contract  binding  on  the  State  (a  matter  pre- 
viously doubted  by  many),  except  its  monopoly  clause, 
which  is  "  hereby  abrogated,  etc.,  .  .  .  provided  said  com- 
pany shall  file  a  written  renunciation  of  all  its  monopoly 
features,  in  the  office  of  the  Secretary  of  State,  within 
sixty  days  after  the  ratification  of  this  Constitution."'  Of 
the  additional  sums  raised  by  licenses  on  lotteries,  — 
*40,000  per  annum  on  each  lottery,  —  the  hospital  at 
Shreveport  shall  receive  $10,000  annually,  and  the  re- 
maining sum  shall  be  divided  each  year  among  the  sev- 
eral parishes  in  the  State  for  the  benefit  of  their  schools. 

The  address  of  President  Dauphin  on  the  character 
and  business  operations  of  his  company,  its  capital  and 
additional  reserve  fund  from  January,  1879,  to  August, 
1883,  etc.,  with  the  notice  thereof  and  comments  thereon, 
may  render  superfluous  any  further  review  of  this  article. 
Time  has  shown  the  folly  of  anticipating  and  the  futility 
of  suggesting  an  increase  in  the  revenue  of  the  State  from 
the  sums  to  be  paid  for  future  grants  of  lottery  charters 
or  privileges  by  the  General  Assembly,  —  sums  to  be  suffi- 
cient to  furnish  the  Shreveport  hospital  yearly  $  10,000, 
and  to  leave  a  remainder  to  be  divided  each  year  among 
the  several  parishes  of  the  State,  fifty-eight  in  number,  for 
the  benefit  of  their  schools  !  In  the  time  that  has  elapsed, 
now  over  three  years,  since  the  adoption  of  the  Constitu- 
tion of  1879,  no  lottery  charter  has  been  granted  by  the 
State  ;  none  has  been  sought,  —  no,  not  one.  The  Loui- 
siana State  Lottery  Company  stands  alone  in  its  bad 
eminence  of  lottery  gamblers.  Its  sordid,  covetous,  and 
avaricious  desire  of  gain,  not  content  with  what  lias  been 
acquired,  urges  the  corporation  to  pursue  its  object  with 
unremitting  greed.  True,  it  has  renounced  its  monopoly 
charter  clause  and  paid  the  amount  of  its  license.  But  the 


THE   LOUISIANA   STATE   LOTTERY.  291 

monopoly  clause  had  ceased  to  be  useful  to  the  company, 
and  the  word  "monopoly"  was  unpopular.  Other  clauses 
of  the  charter :  the  rights  and  privileges  granted,  secured, 
and  enforced  by  penalties  against  any  violation  of  them ; 
the  exemption  from  all  other  licenses  and  taxes  of  any 
kind  whatever,  —  state,  parish,  or  municipal,  —  and  the 
large  amount  of  money  and  other  property  thus  already 
acquired  and  held  free  from  all  taxation ;  the  manner  in 
which  its  business  was  conducted,  its  constant  and  perse- 
vering temptation  held  out  to  all,  and  especially  to  the 
poorer  and  laboring  classes  of  society,  —  all  these  com- 
bined have  continued  to  secure  the  sole  and  exclusive  use 
of  lotteries  in  this  Commonwealth  in  the  hands  of  this 
corporation. 

Enough  has  been  said  to  show  the  immoral  character  of 
lotteries  by  their  pernicious  effects  upon  society,  and  to 
expose  the  real  objects  of  what  is  called  the  Louisiana 
State  Lottery  Company.  It  is  a  monument  of  legislative 
folly  and  popular  deception,  and  of  successful  individual 
cupidity. 

The  "  American  Cyclopedia,"  in  its  last  edition,  1875, 
informs  us  that  the  action  in  most  of  the  States  in  pro- 
hibiting the  further  establishment  of  lotteries  should  be 
mainly  attributed  to  the  efforts  of  a  Pennsylvania  society. 
In  no  fewer  than  twenty-six  of  the  States  the  Constitution 
expressly  forbids  the  legislature  to  authorize  them,  and 
in  nearly  all  the  States  parties  concerned  are  subjected  to 
heavy  penalties  :  but  lotteries  are  still  permitted  in  Ken- 
tucky, and  in  Louisiana  a  general  law  prohibiting  lottery 
companies  was  suspended  in  1868,  by  an  act  chartering 
a  company,  and  giving  it  an  exclusive  privilege  of  selling 
lottery  tickets  for  twenty-five  years.1 

It  is  to  be  observed  that  the  state  Constitution  of  1879, 
which  gave  the  General  Assembly  power  to  grant  char- 
1  American  Cyclopaedia,  vol.  x.,  "  Lottery." 


292  THE   LOUISIANA   STATE   LOTTERY. 

ters  to  lotteries  up  to  1895,  itself  conveys  a  condemna- 
tion of  the  policy  of  such  a  grant  by  providing  that 
"  from  that  time  all  lotteries  are  prohibited  in  this 
State  :  "  and  this  condemnation  is  conveyed  anew  in  Ar- 
ticle 172,  to  wit  :  "  Gambling  is  declared  to  be  a  vice, 
and  the  General  Assembly  shall  enact  laws  for  its  sup- 
pression." Wise  for  the  future,  provident  for  the  pro- 
tection of  posterity  against  the  immoral,  mischievous,  and 
baleful  influence  of  a  lottery  system,  but  too  weak  to 
resist  the  pernicious  influence  of  those  interested  in  the 
system,  the  members  of  the  convention,  heedless  of  the 
present,  passed  by  without  notice  the  great  injury  to  so- 
ciety, to  the  individual  daily  comfort  and  necessities  of 
its  members,  to  the  fame  of  Louisiana,  and  yielded  the 
constitutional  sanction  of  the  State  to  the  charter  of  the 
Louisiana  State  Lottery  Company. 

It  is  a  shame  to  us  that  such  things  can  be  reported, 
and  that  they  cannot  be  refuted  ! 

Passing  by  an  easy  transition  from  the  mistaken  policy 
and  law  of  Louisiana  on  the  subject  of  lotteries,  and  from 
the  general  prohibition  of  lotteries  by  the  several  other 
States  of  the  Union,  attention  will  now  be  turned  to  the 
laws  of  our  general  government,  and  to  the  rights  asserted 
and  claimed  by  the  Louisiana  Lottery  Company  under 
the  Constitution  of  the  United  States. 

The  company  has  published  an  address,  headed  New 
Orleans,  August  1,  1883.  "To  the  public!  Investigate 
for  yourselves." 

The  address  contains  a  statement  "  in  regard  to  the 
standing  of  the  company,  the  reputation  and  value  of  its 
stock,  which  is  sold  at  the  board  of  brokers  and  owned 
bv  many  citizens,  the  fairness  of  its  conduct,  and  the 
payment  of  prizes  to  the  amount  of  84,881.060,  from 
January  1,  1879,  to  August  1,  1883,  made  up  of  $887,350 


THE   LOUISIANA   STATE   LOTTERY.  293 

paid  to  nine  banks  in  New  Orleans,  specially  named  ;  of 
81,366,300  to  express  company,  T.  M.  Wescoat,  mana- 
ger ;  and  of  12,627,410  paid  in  sums  of  under  $1,000  at 
the  various  offices  of  the  company  throughout  the  United 
States." 

To  this  is  appended  in  a  footnote  "  that  to  the  capital 
of  the  company  of  $1,000,000  a  reserve  sum  of  $550.000 
has  since  been  added;"  and,  in  a  further  note,  "agents 
and  purchasers  and  holders  of  lottery  tickets  or  funds 
are  instructed,  '  Address  registered  letters  and  make 
money  orders  payable  to  New  Orleans  National  Bank, 
New  Orleans,  Louisiana.  Remit  by  postal  note,  Ameri- 
can express  order,  New  York  Exchange,  or  draft  on  New 
Orleans.  Express  charges  ,on  all  sums  of  five  dollars  or 
upwards  we  pay.' ': 

The  address  states  nothing  of  the  receipts,  the  profits, 
the  gain  of  the  company,  on  what  is  termed  "  its  grand 
single  number  drawings  monthly,"  or  on  "  its  semi  annual 
drawings,"  with  their  flaming,  tempting  advertisement, 
namely,  "  A  splendid  opportunity  to  win  a  fortune,"  or 
on  its  daily  "combination  numbers  drawings,"  - —  nothing 
of  the  dividends  paid  to  its  individual  members;  but 
leaves  the  whole  matter  of  the  lottery  success  and  benefit 
of  the  company  for  the  "  investigation  of  the  public," 
upon  its  statement  and  alleged  payment  of  prizes. 

This  address  is  evidence,  not  merely  persuasive,  but 
conclusive  evidence,  that  the  Louisiana  Lottery  Company 
has  used,  and  now  continues  openly  and  avowedly  to  use, 
the  United  States  mail  to  transport  corrupting  publica- 
tions and  articles  injurious  to  the  public  morals  from  the 
State  of  Louisiana  to  other  States  of  the  Union,  which 
have  prohibited  the  establishment  of  lotteries,  and  the 
sale  of  lottery  tickets,  devices,  or  certificates,  etc.,  of  any 
kind  whatever ;  and  that  the  company  has,  for  the  sole 
purpose  of  lucre,  without  any  other  reasonable  and  assign- 


294  THE   LOUISIANA   STATE   LOTTERY. 

able  motive,  extended  its  grasping  hand  beyond  Louisi- 
ana, and  carried  and  plied  its  pernicious  business,  with 
artful  temptation  and  seductive  success,  by  agents  and 
employees  at  the  various  offices  of  the  company  through- 
out the  United  States,  so  as  to  delude  their  citizens,  and 
induce  them,  in  violation  of  their  several  state  laws  and 
state  policy,  to  enter  in  considerable  numbers  into  for- 
bidden contracts,  in  buying  and  dealing  in  the  lottery 
tickets  of  the  Lottery  Company,  —  a  hazardous  and  unfair 
species  of  gambling,  perhaps  the  most  certainly  unfair, 
demoralizing,  and  hurtful ! 

Assuming  for  the  sake  of  argument  that  the  charter  of 
the  Lottery  Company  is  a  valid  grant  by  the  State  of 
Louisiana,  the  right  of  the  company  to  use  the  mail,  the 
post-offices,  and  the  post-roads  of  the  LTnited  States,  in  the 
manner  and  for  the  purposes  claimed,  will  be  considered. 

The  Constitution  of  the  United  States  provides  Con- 
gress shall  have  power  to  establish  post-offices  and  post- 
roads. 

Story  says  the  nature  and  extent  of  this  power,  both 
theoretically  and  practically,  are  of  great  importance. 
"Nothing,"  observed  "The  Federalist,"  "which  tends 
to  facilitate  the  intercourse  between  the  States  can  be 
deemed  unworthy  of  public  care."  It  is  universally 
agreed  that  the  post-office  establishment  is  one  of  the 
most  beneficent  and  useful  establishments  under  the 
national  government.  It  circulates  intelligence  of  a 
commercial,  political,  intellectual,  and  private  nature, 
administers  to  the  comfort,  interests,  and  necessities  of 
individuals,  cheers  millions  of  hearts,  imparts  new  influ- 
ence and  impetus  to  private  intercourse,  and,  by  a  wider 
diffusion  of  knowledge,  enables  political  rights  and  duties 
to  be  performed  with  more  uniformity  and  sound  judg- 
ment. It  is  effective  as  an  instrument  of  the  government 
in  its  own  operations,  in  peace  and  in  war,  enabling  it  to 


THE   LOUISIANA   STATE   LOTTERY.  295 

send  its  orders,  direct  its  measures  for  the  public  good, 
transfer  its  funds,  and  apply  its  powers  with  greater 
facility  and  promptitude.  The  establishment  in  the 
hands  of  the  States  would  have  been  wholly  inadequate 
to  these  objects ;  it  requires  a  power  which  pervades  the 
Union,  and  which  the  national  government  alone  can 
safely  or  effectually  execute. 

The  power  of  Congress  over  the  post-office  and  the 
mail  is  an  exclusive  one.  The  States  have  no  post-office 
department.  The  power  to  establish  that  department  is 
delegated  entirely  to  the  general  government. 

"  The  power  possessed  by  Congress  embraces  the  regu- 
lation of  the  entire  postal  system  of  the  country.  The 
right  to  designate  what  shall  be  carried  necessarily 
involves  the  right  to  determine  what  shall  be  excluded." 

"  The  validity  of  legislation,  prescribing  what  should 
be  carried,  and  its  weight  and  form,  and  the  charges  to 
which  it  should  be  subjected,  has  never  been  questioned. 
What  should  be  mailable  has  varied  at  different  times, 
changing  with  the  facility  of  transportation  over  the  post- 
roads.  At  one  time,  only  letters,  newspapers,  magazines, 
pamphlets,  and  other  printed  matter  not  exceeding  eight 
ounces  in  weight  were  carried.  Afterwards  books  were 
added  to  the  list,  and  now  small  matters  of  merchandise 
not  exceeding  a  prescribed  weight,  as  well  as  books  and 
printed  matter  of  all  kinds,  are  transported  in  the  mail. 

"  The  difficulty  attending  the  subject  arises,  not  from 
the  want  of  power  in  Congress  to  prescribe  regulations  as 
to  what  shall  constitute  mail  matter,  but  from  the  neces- 
sity of  enforcing  them  consistently  with  rights  reserved 
to  the  people,  of  far  greater  importance  than  the  trans- 
portation of  the  mail.  In  their  enforcement,  a  distinction 
is  to  be  made  between  different  kinds  of  mail  matter,  — 
between  what  is  intended  to  be  kept  free  from  inspection, 
such  as  letters  and  sealed  packages  subject  to  postage, 


296  THE   LOUISIANA   STATE   LOTTERY. 

and  what  is  open  to  inspection,  such  as  newspapers,  mag- 
azines, pamphlets,  and  other  printed  matter  purposely  left 
in  a  condition  to  be  examined.  Letters  and  sealed  pack- 
ages of  this  kind  in  the  mail  are  as  fully  guarded  from 
examination  and  inspection,  except  as  to  their  outward 
form  and  weight,  as  if  they  were  retained  by  the  parties 
forwarding  them  in  their  own  domiciles.  The  constitu- 
tional guaranty  of  the  right  of  the  people  to  be  secure  in 
their  papers  against  unreasonable  searches  and  seizures 
extends  to  their  papers  thus  closed  against  inspection, 
wherever  they  may  be.  Whilst  in  the  mail  they  can  only 
be  opened  and  examined  under  like  warrant,  issued  upon 
similar  oath  or  affirmation,  particularly  describing  the 
thing  to  be  seized,  as  is  required  when  papers  are  sub- 
jected to  search  in  one's  own  household.  No  law  of  Con- 
gress can  place  in  the  hands  of  officials  connected  with 
the  postal  service  any  authority  to  invade  the  secrecy  of 
letters  and  such  sealed  packages  in  the  mail ;  and  all 
regulations  adopted  as  to  mail  matter  of  this  kind  must 
be  in  subordination  to  the  great  principle  embodied  in 
fourth  amendment  of  the  Constitution. 

"  Nor  can  any  regulations  be  enforced  against  the 
transportation  of  printed  matter  in  the  mail  which  is 
open  to  examination,  so  as  to  interfere  in  any  manner 
with  the  freedom  of  the  press.  Liberty  of  circulating  is 
as  essential  to  that  freedom  as  liberty  of  publishing; 
indeed,  without  the  circulation  the  publication  would  be 
of  little  value.  If,  therefore,  printed  matter  be  excluded 
from  the  mails,  its  transportation  in  any  other  way  can- 
not be  forbidden  by  Congress."  r 

The  court  proceeded   to  state   that  in  1836   the   power 

of   Congress    to   exclude   publications   from   the   mail  was 

discussed    in   the    Senate.      President   Jackson    had,   in    a 

previous  message,  suggested   to  Congress  the   propriety  of 

1  S.  C.  U.  S.  /<;./•  i«irtr  Jiu-kson,  0  Otto,  7.'5:3. 


THE   LOUISIANA   STATE   LOTTERY.  297 

passing  a  law  prohibiting  the  circulation  of  incendiary 
publications  to  stimulate  the  slaves  in  the  Southern 
States  to  insurrection,  and  preventing  the  post-office 
department,  which  was  designed  to  foster  an  amicable 
intercourse  and  correspondence  between  all  the  members 
of  the  Confederacy,  from  being  used  as  an  instrument  of 
an  opposite  character.  That  part  of  the  message  was 
referred,  on  motion  of  Mr.  Calhoun,  to  a  select  commit- 
tee of  which  he  was  made  chairman,  and  he  made  an 
elaborate  report  on  the  subject,  with  an  accompanying 
bill  condemning  in  the  strongest  terms  the  circulation  of 
the  publications.  He  insisted  that  Congress  had  not  the 
power  to  prohibit  their  transmission  through  the  mail,  on 
the  ground  that  it  would  abridge  the  liberty  of  the  press. 
At  the  same  time  he  insisted  that  when  a  State  had  pro- 
nounced their  circulation  to  be  dangerous,  and  had  pro- 
hibited it,  it  was  the  duty  of  Congress  to  respect  its  laws 
and  cooperate  in  their  enforcement,  and  to  prevent  de- 
livery by  the  postmasters  in  the  States  where  the  circula- 
tion was  forbidden. 

"These  views,"  said  the  court,  "were  founded  on  the 
assumption  that  it  was  competent  for  Congress  to  pro- 
hibit the  transportation  of  newspapers  and  pamphlets 
over  postal  routes  in  any  other  way  than  by  mail ;  and  of 
course  it  would  follow  that  if,  with  such  a  prohibition, 
the  transportation  in  the  mail  could  also  be  forbidden,  the 
circulation  of  the  documents  would  be  destroyed,  and  a 
fatal  blow  given  to  the  freedom  of  the  press.  But  we  do 
not  think  that  Congress  possesses  the  power  to  prevent 
the  transportation  in  other  ways,  as  merchandise,  of  mat- 
ter which  it  excludes  from  the  mails.  To  give  efficiency 
to  its  regulations  and  prevent  rival  postal  systems,  it  may, 
perhaps,  prohibit  the  carriage  by  others  for  hire  over 
postal  routes  of  articles  which  legitimately  constitute 
mail  matter  in  the  sense  in  which  that  term  was  used 


298  THE   LOUISIANA   STATE   LOTTERY. 

when  the  Constitution  was  adopted,  consisting  of  letters, 
and  of  newspapers  and  pamphlets,  when  not  sent  as  mer- 
chandise ;  but  further  than  this  its  power  of  prohibition 
cannot  extend. 

"  Whilst  regulations  excluding  matter  from  the  mail  can- 
not be  enforced  in  a  way  which  would  require  or  permit 
an  examination  into  letters  or  sealed  packages  subject  to 
letter  postage  without  warrant  issued  upon  oath  or  affir- 
mation in  the  search  for  prohibited  matter,  they  may  be 
enforced  upon  competent  evidence  of  their  violation 
obtained  in  other  ways,  as  from  parties  receiving  the 
letters  or  packages,  or  from  agents  depositing  them  in 
the  post-office,  or  others  cognizant  of  the  facts.  And  as 
to  objectionable  printed  matter  which  is  open  to  examina- 
tion, the  regulations  may  be  enforced  in  a  similar  way  by 
the  imposition  of  penalties  for  their  violation,  through  the 
courts,  and  in  some  cases  by  the  direct  action  of  the 
officers  of  the  postal  service.  In  many  instances  these 
officers  can  act  upon  their  own  inspection,  and  from  the 
nature  of  the  case  must  act  without  other  proof,  as  when 
the  postage  is  not  prepaid,  or  where  there  is  an  excess  of 
weight  over  the  amount  prescribed,  or  where  the  object 
is  exposed  and  shows  unmistakably  that  it  is  prohibited, 
as  in  the  case  of  an  obscene  picture  or  print.  In  such 
cases  no  difficulty  arises  and  no  principle  is  violated  in 
excluding  the  prohibited  articles  or  refusing  to  forward 
them.  The  evidence  respecting  them  is  seen  by  every 
one,  and  is  in  its  nature  conclusive. 

k'  In  excluding  various  articles  from  the  mail,  the  object 
of  Congress  has  not  been  to  interfere  with  the  freedom  of 
the  press,  or  with  any  other  rights  of  the  people,  but  to 
refuse  its  facilities  for  the  distribution  of  matter  deemed 
injurious  to  the  public  morals.  Thus,  bv  act  of  March  3, 
187r3,  Congress  declared  *  that  no  obscene,  lewd,  or  las- 
civious book,  pamphlet,  picture,  paper,  print,  or  other 


THE   LOUISIANA   STATE   LOTTERY.  299 

publication  of  an  indecent  character,  nor  any  article  or 
thing  designed  or  intended  for  the  prevention  of  concep- 
tion or  procuring  of  abortion,  nor  any  article  or  thing 
intended  or  adapted  for  any  indecent  or  immoral  use 
or  nature,  nor  any  written  or  printed  card,  circular, 
book,  pamphlet,  advertisement,  or  notice  of  any  kind, 
giving  information,  directly  or  indirectly,  where,  or  how, 
or  of  whom,  or  by  what  means  either  of  the  things  before 
mentioned  may  be  obtained  or  made,  nor  any  letter  upon 
the  envelope  of  which,  or  postal-card  upon  which,  inde- 
cent or  scurrilous  epithets  may  be  written  or  printed, 
shall  be  carried  in  the  mail;  and  any  person  who  shall 
knowingly  deposit  or  cause  to  be  deposited  for  mailing  or 
delivery  any  of  the  hereinbefore  mentioned  articles  or 
things  .  .  .  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof  shall  for  every  offense  be  fined  not 
less  than  -$100  nor  more  than  $5,000,  or  imprisonment 
at  hard  labor  not  less  than  one  year  nor  more  than  ten 
years,  or  both,  at  the  discretion  of  the  judge.' 

"  All  that  Congress  meant  by  this  act  was  that  the 
mail  should  not  be  used  to  transport  such  corrupting  pub- 
lications and  articles,  and  that  any  one  who  attempted  to 
use  it  for  that  purpose  should  be  punished.  The  same 
inhibition  has  been  extended  to  circulars  concerning  lot- 
teries, institutions  which  are  supposed  to  have  a  demoral- 
izing influence  upon  the  people.  .  .  .  The  only  question 
for  our  determination  relates  to  the  constitutionality  of 
the  act,  and  of  that  we  have  no  doubt." 

"  The  commitment  of  the  prisoner  to  the  county  jail, 
until  his  fine  was  paid,  was,  within  the  discretion  of  the 
court,  under  the  statute." 

The  statement  of  the  case  thus  decided  shows  that 
"  Section  3894  of  the  Revised  Statutes  U.  S.  provides  : 
No  letter  or  circular  concerning  '  illegal '  lotteries  .  .  . 
shall  be  carried  in  the  mail.  Any  person  who  shall  know- 


300  THE   LOUISIANA   STATE   LOTTERY. 

ingly  deposit  or  send  anything  to  be  conveyed  by  mail  in 
violation  of  this  section  shall  be  punishable  by  a  fine  of 
not  more  than  $500  nor  less  than  -$100,  with  costs  of 
prosecution.'"  By  an  act  of  July,  1876,  the  word 
"  illegal  "  was  stricken  out  of  the  section.  Under  the 
law  as  thus  amended,  Jackson  was  indicted  in  the  Circuit 
Court  U.  S.,  southern  district  of  New  York,  for  know- 
ingly and  unlawfully  depositing,  on  the  23d  February, 
1877,  in  that  district,  in  the  mail  of  the  United  States,  to 
be  conveyed  in  it,  a  circular  concerning  a  lottery  offering 
prizes  inclosed  in  an  envelope  to  one  I.  Ketchum  at  Glov- 
ersville,  New  York.  lie  was  tried,  convicted,  sentenced 
to  pay  a  fine  of  -$100  with  costs,  and  committed  to  the 
county  jail  until  the  fine  and  costs  were  paid.  Where- 
upon he  presented  a  petition  praying  the  Supreme  Court 
for  a  habeas  cot-pus  to  inquire  into  the  cause  and  legality 
of  his  imprisonment.  The  result  was  the  opinion  and 
decree  just  examined,  the  unanimous  opinion  of  that  high 
tribunal  that  the  Constitution  of  the  United  States  has 
vested  in  Congress  the  exclusive  power  to  regulate  the 
entire  postal  system  of  the  country,  to  designate  what 
shall  be  carried  in  the  mail,  and  to  determine  what  shall 
be  excluded ;  and  that  Congress  has,  in  the  exercise  of 
that  power,  excluded  from  transportation  in  the  mail  cir- 
culars concerning  lotteries. 

This  is  intentionally  repeated,  to  impress  more  forcibly 
and  indelibly  the  policy  and  the  concurrent  opinion  of 
the  Congress  and  the  judiciary. 

On  the  13th  November,  1879,  the  Postmaster-General 
of  the  United  States,  1).  M.  Key,  issued  an  order  to  the 
postmaster  at  New  Orleans  touching  money  orders  and 
registered  letters  addressed  "  to  M.  A.  Dauphin,  engaged 
in  conducting  a  scheme  or  device  for  obtaining  money 
through  the  mails  bv  means  of  fraudulent  pretenses,"  etc. 
(which  the  Postmaster-General  particularly  described), 


THE  LOUISIANA   STATE   LOTTERY.  301 

forbade  the  postmaster  at  New  Orleans  to  pay  any 
postal  money  order  drawn  to  the  order  of  said  Dauphin, 
etc.,  "  and  directed  him  to  inform  the  remitter  of  said 
postal  money  order  that  the  sum  of  said  money  order  will 
be  returned  to  him  under  the  regulations  of  the  depart- 
ment." Pie  further  instructed  the  postmaster  at  New 
Orleans  "  to  return  all  registered  letters  directed  to  said 
Dauphin,"  etc.,  "  to  the  postmasters  at  the  office  where 
they  were  originally  mailed,  with  the  word  '  fraudulent ' 
plainly  written  or  stamped  upon  the  outside  of  such  let- 
ters." This  order,  the  Postmaster-General  wrote,  was 
made  "  upon  satisfactory  evidence  before  him  that  the 
said  Dauphin  was  so  engaged." 

M.  A.  Dauphin  brought  suit  against  Postmaster-General 
Key  to  enjoin  the  execution  of  this  order.  The  decree  of 
the  court  of  original  jurisdiction  was  (must  have  been) 
adverse  to  Dauphin,  and  the  injunction  was  refused. 
Dauphin  appealed  the  case  to  the  Supreme  Court  of 
the  United  States.  But  the  court  of  original  jurisdiction 
had  already  sustained  Key's  order.  It  was  valid  and 
binding  in  law,  in  the  hands  of  the  postmasters  who  were 
bound  to  obey  and  enforce  it;  the  Postmaster -General 
satisfied  from  evidence  that  the  order  was  necessary,  its 
immediate  execution  was  about  to  be  pressed.  "  What 
could  be  done  to  arrest  the  prompt,  immediate  execution 
of  the  order,  so  injurious,  perhaps  fatal,  to  the  lottery 
represented  by  Dauphin  ?  "  Let  the  following  order  of 
Postmaster-General  Key  show  what  was  actually  done  :  — 

POST  OFFICE  DEPARTMENT,  WASHINGTON,  D.  C., 
Feb.  27,  1880. 

SIR,  —  This  party  (M.  A.  Dauphin,  Prest.  of  the  La. 
S.  Lottery  Co.)  having  brought  suit  against  me,  to  en- 
join the  performance  of  this  order,  and  having  appealed 


302  THE   LOUISIANA   STATE   LOTTERY. 

the  same  to  the  Supreme  Court  of  the  United  States, 
and  having  this  day  presented  the  certificate  of  the  Gov- 
ernor and  state  officers  of  the  State  of  Louisiana  that 
he  has  complied  with  all  the  legal  requirements  of  that 
State,  and  other  evidence  ;  and  "  not  being  satisfied  " 
from  the  evidence  submitted  to  me  that  the  said  M.  A. 
Dauphin  is  engaged  in  conducting  a  scheme  or  device  for 
obtaining  money  through  the  mails  by  means  of  false 
and  fraudulent  pretenses  and  representations  and  prom- 
ises, I  do  hereby  authorize  and  direct  the  suspension  of 
said  order  of  November,  1879,  so  far  as  relates  to  said 
Dauphin,  until  the  case  shall  have  been  heard  and  deter- 
mined by  the  Supreme  Court  of  the  United  States. 

D.  M.  KEY,  Postmaster- General. 
To  Postmaster   New    Orleans,    La., 
and  Postmaster  New  York,  N.  Y. 

It  is  plain  that  the  Postmaster-General  had  consented 
to  a  mere  "  suspension  of  said  order  of  November,  1879  ;  " 
a  temporary  suspension  of  that  order  until  the  case  under 
appeal  should  have  been  heard  and  determined  by  the  tri- 
bunal of  last  resort.  The  order  of  November,  1879,  was 
not  revoked  or  canceled.  It  was  simply  provided  that, 
during  the  pendency  of  the  appeal,  the  execution  of  that 
previous  order  should  be  suspended.  Now  we  learn  that 
the  appeal  was  dismissed  in  vacation  by  the  appellant's 
counsel,  with  the  consent  of  the  solicitor-general.  This 
put  an  end  to  the  suspension,  and  restored  the  binding 
effect  of  that  previous  order,  as  Postmaster-General 
Gresham  justly  maintains. 

The  notion  "'  that  Congress  had  not  power  to  pass  a 
law  prohibiting  the  transmission  through  the  *  mail,'  and 
refusing  its  facilities  for  distributing  matter  deemed  inju- 
rious to  the  public  morals,"  corrupting  publications  and 
articles,  and  circulars  concerning  lotteries,  —  institutions 
which  an-  supposed  to  have  a  demoralizing  influence  upon 


THE   LOUISIANA  STATE   LOTTERY.  303 

the  people,  —  because  that  would  abridge  the   liberty  of 
the  press,  deserves  no  further  refutation. 

When  the  fathers  proclaimed  in  the  Constitution  of 
the  United  States  that  no  senator  or  representative,  in 
either  house  of  Congress,  shall  be  questioned  in  any 
other  place  for  any  speech  or  debate  he  may  have  made 
in  Congress,1  it  was  under  the  perfect  conviction  that  the 
freedom,  the  most  absolute  freedom  of  discussion  is  ne- 
cessary to  expose  error  or  delinquency,  and  to  bring  the 
truth  into  full  light.  And  it  was  to  secure  this  freedom 
of  discussion  that  the  first  amendment  to  the  Constitution 
was  made,  containing  the  clause  respecting  the  liberty  of 
speech  and  of  the  press  :  "  Congress  shall  make  no  law 
abridging  the  freedom  of  speech  or  of  the  press." 

Truth  does  good.  On  questions  of  a  general  and  pub- 
lic nature,  there  is  no  means  of  discovering  what  is  truth 
and  what  is  error  or  imposture,  but  a  full  examination  of 
the  questions,  with  all  their  evidence  and  under  all  their 
aspects.  Truth  cannot  gain  by  suppressing  and  restrain- 
ing the  production  of  facts  and  arguments.  "  If  power 
be  given  to  the  government  to  say  what  opinions  shall  be 
published  and  what  shall  not  be  published,  the  whole 
knowledge,  talent,  and  intellect  of  the  country  is  under 
the  absolute  guidance  and  control  of  its  political  rulers." 
To  decide  what  opinions  shall  be  permitted  and  what  pro- 
hibited is  to  choose  opinions  for  the  people.  "  The  ab- 
solute power  of  suppressing  opinions,  if  it  could  be 
exercised,  would  amount  to  a  despotism  far  more  perfect 
than  any  which  has  yet  existed."  2  If  general  happiness 
and  national  prosperity  be  connected  with  the  general 
diffusion  of  knowledge,  and  if  knowledge  be  the  result  of 
freedom  of  inquiry,  then  it  is  truly  said  freedom  of  in- 

1  Constitution,  Art.  1,  Sect.  G. 

2  G  Westminster  Review,  p.  290. 


304  THE   LOUISIANA   STATE   LOTTERY. 

quiry  is  at  least  one  of  the  main  sources  of  national 
prosperity.  Energy  of  intellect  increases  as  the  field  of 
its  exertion  is  extended  ;  full  and  free  discussion  leads 
to  public  information  and  sound  judgment.  "  Men  are 
never,"  says  Macaulay,  u  so  likely  to  settle  a  question 
rightly  as  when  they  discuss  it  freely.  A  government  can 
interfere  in  discussion  only  by  making  it  less  free  than  it 
would  otherwise  be." 

The  framers  of  the  Constitution  were  wise,  patriotic, 
and  experienced  ;  familiar  with  and  properly  appreciat- 
ing the  principles  of  public  liberty  existing  in  England, 
and  which  they  brought  to  America,  leaving  all  that  was 
objectionable.  They  were  great  reformers. 

Among  the  objections  against  the  Constitution,  it  was 
contended  that  it  provided  no  express  protection  of  free- 
dom of  speech  and  of  the  press  from  the  government  about 
to  be  created,  —  a  protection  which  English  history  pain- 
fully proved  to  be  indispensable  to  general  knowledge,  to 
purity  of  government,  and  to  true  liberty.  The  atrocious 
cases  of  libel  tried  before  the  judicial  tribunals  of  Eng- 
land, revolting  to  justice  and  humanity,  showed  the  wis- 
dom and  necessity  of  the  proposed  amendment :  and  the 
promptitude  and  zeal  with  which  it  was  supported  evinced 
the  good  faith,  patriotism,  and  regard  for  their  posterity 
characteristic  of  the  fathers. 

The  liberty  of  the  press  is  the  liberty  of  printing  as 
well  as  the  liberty  of  publishing.  It  consists  in  the  right 
to  publish  freely  the  truth  and  sentiments  on  all  subjects, 
with  good  motives  and  for  justifiable  ends.  To  publish 
is  to  make  public,  to  announce,  to  disclose,  to  promulgate, 
to  put  forth  or  issue  to  the  public.  The  press  conveys 
the  same  thought  to  ten  thousand  minds  at  the  same 
time  :  and  the  mighty  power  of  public  opinion,  embodied 
in  a  free  press,  checks  and  controls  human  governments. 
"  It  is,"  says  M.  Thiers,  "  the  privilege  by  means  of  which 


THE   LOUISIANA  STATE  LOTTERY.  305 

he  who  vainly  lifts  his  voice  against  the  corruptions  or 
prejudices  of  his  own  time  may  leave  his  counsel  upon 
record  as  a  legacy  to  impartial  posterity." 

It  was  with  full  knowledge  and  a  just  appreciation  of 
the  liberty  of  the  press  that  the  power  was  vested  in 
Congress  "to  establish  post-offices  and  post-roads." 

We  have  seen  that  the  power  possessed  by  Congress 
embraces  the  regulation  of  the  entire  postal  system  of  the 
country,  —  the  carriage  of  the  mail,  its  safe  and  speedy 
transport,  the  prompt  delivery  of  its  contents,  and  the 
designation  of  what  shall  be  carried  and  what  shall  be 
excluded  ;  that  Congress,  in  excluding  various  articles 
from  the  mail,  did  not  intend  to  interfere  with  the  free- 
dom of  the  press  or  with  any  other  rights  of  the  people, 
by  the  act  of  March  3, 1873,  but  to  refuse  the  facilities  of 
the  mail  for  the  distribution  of  matter  deemed  injurious 
to  the  public  morals.  It  meant,  by  the  act,  that  the  mail 
should  not  be  used  to  transport  such  corrupting  publica- 
tions and  articles  (as  those  mentioned  in  the  act),  and 
that  any  one  who  attempted  to  use  it  for  that  purpose 
should  be  punished ;  that  the  same  inhibition  has  been 
extended  to  circulars  of  lotteries  which  are  supposed  to 
have  a  demoralizing  influence  upon  the  people  ;  and  that 
the  Supreme  Court  of  the  United  States  have  emphati- 
cally declared,  "  Of  the  constitutionality  of  the  act  we 
have  no  doubt." 

The  liberty  of  the  press  consists  in  the  right  to  publish 
with  impunity  truth,  with  good  motives,  for  justifiable 
ends.  It  is  the  constitutional  principle  in  our  country 
that  "  every  citizen  may  freely  speak,  write,  and  publish 
his  sentiments,  being  responsible  for  the  '  abuse  '  of  that 
right,  and  that  no  law  can  rightfully  be  passed  by  Con- 
gress to  abridge  the  freedom  of  the  press." 

To  suppose  that  Congress  is  bound  by  this  constitu- 
tional principle  to  aid  in  the  transportation,  distribution, 
20 


306  THE   LOUISIANA   STATE   LOTTERY. 

and  circulation  of  immoral,  corrupting  publications  and 
articles,  contrary  to  its  own  judgment  and  the  policy  of 
enlightened  States  of  the  Union,  through  the  national 
post-offices  and  post-roads  and  mail,  for  the  purposes  of  a 
lottery  system,  a  system  of  gambling,  of  delusion,  and  de- 
ception, of  a  general  excitement  for  gain  and  of  popular 
spoliation,  —  for  instance,  to  entice  citizens  of  New  York 
State,  bound  by  her  law  prohibiting  lotteries,  and  to 
seduce  them,  in  violation  of  her  law,  within  her  own 
territory,  into  gambling  lottery  contracts  and  business  ; 
and  now  to  threaten  to  harass  the  officers,  Postmaster- 
General  of  the  United  States  and  others,  with  suit  for  a 
proper  exercise  of  their  duty  under  the  constitutional 
laws  of  Congress  !  Such  is  the  claim  and  such  the  posi- 
tion of  the  Louisiana  Lottery. 

It  is  not  necessary  to  notice  at  any  extended  length 
the  pretended  impossibility  of  enforcing  the  regulations 
of  Congress  as  to  what  shall  constitute  mail  matter,  and, 
of  course,  what  shall  not,  consistently  with  the  fourth 
amendment  of  the  Constitution  of  the  United  States, 
which  proclaims,  "  The  right  of  the  people  to  be  secure 
in  their  papers  against  unreasonable  searches  and  seizures 
of  papers  shall  not  be  violated  ;  and  no  warrant  shall 
be  issued  but  upon  probable  cause,  supported  by  oath 
or  affirmation,  describing  the  place  to  be  searched,  and 
the  persons  or  things  to  be  seized." 

Undoubtedly,  letters,  and  sealed  packages  subject  to 
letter  postage  in  the  mail,  are  as  fully  guarded  from  in- 
spection as  if  they  were  retained  by  the  parties  forward- 
ing them  in  their  own  domiciles.  The  guaranty  against 
unreasonable  searches  and  seizures  of  papers  extends  to 
papers  wherever  they  niay  be.  But  whilst  regulations 
excluding  matter  from  the  mail  cannot  be  enforced  in  a 
way  which  would  require  or  permit  an  examination  into 
letters,  or  sealed  packages  subject  to  letter  postage,  with- 


THE   LOUISIANA   STATE   LOTTERY.  307 

out  warrant,  issued  upon  oath  or  affirmation,  in  the  search 
for  prohibited  matter,  they  may  be  enforced  upon  compe- 
tent evidence  of  their  violation  obtained  in  other  ways, 
as  stated  already  in  the  extract  from  the  decision  of  the 
Supreme  Court. 

Nor  is  it  necessary  to  inquire  how,  by  what  evidence, 
what  abracadabra,  Postmaster  -  General  Key  or  Post- 
master General  Howe  became  convinced  that  there  was 
nothing  "  fraudulent "  in  the  Louisiana  Lottery  business. 
If  fraudulent  means  false,  deceptive,  misleading,  delusive, 
it  is  impossible  to  find  a  word  more  strongly  and  truly 
descriptive  of  the  character  of  the  Louisiana  State  Lot- 
tery. 


THE   GOVERNMENT   OF   THE   REPUBLICAN 
PARTY   IN   LOUISIANA. 

[Extract  from  notes  of  a  speech  delivered  by  Mr.  Hunt,  in 
1876,  when  the  Hon.  Francis  T.  Nichols  was  the  Democratic 
candidate  for  Governor  of  the  State  against  Mr.  Stephen  B. 
Packard,  Republican.] 

THE  government  of  Louisiana  is  truly  called  the  Kel- 
logg government.  It  is  a  government  of  usurpation  and 
tyranny.  It  was  created  by  judicial  fraud,  and  enforced 
by  military  despotism.  It  has  been,  and  still  is,  upheld 
by  the  will  of  the  President  alone. 

In  its  origin,  it  trampled  upon  the  principle  of  popular 
representation,  and  substituted  a  barbarous  horde  of 
needy  and  greedy  carpet-bag  adventurers,  and  ignorant 
negroes,  their  deluded  and  unhappy  dupes,  in  the  place 
of  the  constitutional  representatives  of  the  State.  The 
legislature  thus  composed  was  a  band  of  oppressors  and 
spoliators,  who  loaded  the  people  with  taxes  to  enrich 
themselves,  their  governor  and  his  followers,  and  impov- 
erished and  ruined  the  owners  of  property. 

It  is  known  by  acts  hostile  to  liberty  and  free  govern- 
ment, and  injurious  to  the  interests  and  the  welfare  of 
the  people.  A  judiciary  to  uphold  and  support  the  acts 
of  the  legislature  was  of  course  established.  Judges  were 
selected  for  their  supposed  subserviency  to  the  will  of  the 
executive  and  the  behests  of  their  party.  "With  few, 
very  few  exceptions,  they  have  been  deemed  corrupt  and 
ignorant,  ;ind  are  justly  held  in  public  odium  and  con- 
tempt. The  citizens  of  Louisiana  have  no  confidence  in 


THE  REPUBLICAN   PARTY   IN   LOUISIANA.      309 

the  integrity,  learning,  and  judgment  of  the  existing 
judicial  tribunals  of  their  unhappy  State.  The  executive 
department  of  the  Kellogg  dynasty  is  akin  to  the  legisla- 
tive and  judiciary  departments,  and  is  well  adapted  to  the 
purposes  of  tyranny  and  spoliation. 

Its  officers  have  been  charged  with  breaches  of  public 
trust,  false  assessments  of  taxable  property,  and  corrupt 
bargains  with  taxpayers,  with  defalcations  and  embezzle- 
ments. The  governor  himself,  once  poor,  has  become  rich 
by  gainful  speculations,  by  means  of  legislative  action. 
He  has  pardoned  a  large  number  of  convicted  felons,  in 
contempt  of  law,  justice,  public  opinion,  and  the  peace 
and  good  order  of  society. 

One  act,  for  which,  however,  he  has  only  been  left 
responsible  to  public  opinion,  is  the  slaughter,  under  his 
authority,  of  a  large  number  of  our  fellow-citizens  on  the 
14th  of  September,  1874,  —  citizens  whose  sole  objects  and 
intentions  on  the  occasion  were  to  take  possession  of  arms 
belonging  to  them,  which  they  had  imported  legally,  and 
which  they  had  been  obstructed  unlawfully  in  obtaining. 

He  has  several  times  deserted  his  office,  left  the  State, 
and  gone  to  Washington  to  poison  by  calumnies  and  false 
reports  the  mind  and  heart  of  the  President  against  the 
people  over  whom  he  rules ;  to  procure  troops  to  be  sent 
to  Louisiana  to  overawe  the  good  citizens,  white  and 
colored,  of  the  State ;  to  effect  a  rupture,  if  possible, 
between  those  citizens,  allied  together  to  choose  honest 
and  well-qualified  public  officers  at  the  coming  election ; 
and  to  continue,  by  means  of  the  presence  of  a  large 
armed  force,  a  rule  foreign  and  hostile  to  the  State,  —  a 
rule  of  greed  and  corruption,  of  spoliation  and  wasteful 
expenditure  for  party  and  selfish  purposes. 

The  means  used  to  give  a  semblance  of  popular  action 
to  these  outrages,  grievances,  oppressions,  wrongs,  and 
abuses  were  false  registration  acts  and  a  pretended  and 
miscalled  returning  board.  They  were  inventions  of  a 


310      THE   REPUBLICAN   PARTY   IN   LOUISIANA. 

time  when  the  noblest  citizens  of  Louisiana  were  pro- 
scribed and  disfranchised,  and  they  descended  as  a  legacy 
to  Kellogg. 

The  registration  frauds  are  familiar  to  you  by  the  ex- 
posure made  by  a  conservative  committee  of  our  citizens 
and  the  daily  publications  and  comments  of  a  well-in- 
formed and  spirited  press.  The  other  abuse  is  the  infa- 
mous returning  board. 

This  board,  under  the  stimulating  encouragement  and 
protection  of  the  military  power,  notwithstanding  it  had 
no  returns  before  it,  officially  announced  the  election  of 
Kellogg  to  the  gubernatorial  chair.  I  know  that  there 
are  many  persons  who  fear  that  the  board  will  again 
make  a  false  report,  equally  unfounded,  and  in  favor  of 
Packard.  But  it  is  a  false  fear.  The  day  for  suffering 
such  a  fraud  to  be  perpetrated  has  passed  away.  Every 
eye  is  fixed  upon  the  election,  every  heart  is  determined 
on  honesty  in  its  conduct ;  and  audacious  as  those  in  the 
service  of  our  tyrants  are,  they  will  not  dare  again  to 
trample  upon  the  rights  of  a  free,  outraged,  and  offended 
people. 

Supported  by  the  full  sense  of  right,  by  the  Constitu- 
tion and  laws  of  their  country,  and  by  the  sympathy  and 
countenance  of  every  lover  of  American  liberty,  they  will 
maintain  their  liberties.  The  people  are  aroused  and 
vigilant.  Let  them  be  calm  and  prudent,  but  determined 
not  to  be  intimidated  or  cheated. 

The  presence  of  armed  men,  if  that  foul  wrong  should 
be  effected,  and  the  glitter  of  arms  should  inspire  no 
fear  in  the  breast  of  the  patriot.  In  the  last  event,  if 
unavoidable,  it  is  better  to  die  freemen  than  to  live 
slaves.  But  the  people  of  Louisiana  will  not  be  reduced 
to  such  an  extremity.  They  are  in  a  large  majority,  and, 
if  undaunted,  they  will  enjoy  a  peaceful  and  noble  tri- 
umph. Louisiana  will  rise  from  her  prostration,  and 


THE   REPUBLICAN   PARTY   IN  LOUISIANA.      311 

stand,  redeemed,  regenerated,  and  disinthralled,  with  a 
pure,  constitutional  American  government,  —  a  State,  the 
herald  of  liberty  and  prosperity. 

When,  at  the  instance  of  Packard,  Casey,  Judge 
Durell,  and  other  officers  of  the  United  States  resident 
here,  Louisiana  was  converted  by  General  Grant  into  a 
satrapy,  and  the  ambitious  and  cunning  but  timid  Kel- 
logg was  made  its  ruler,  two  assemblies  claimed  to  be 
severally  the  legislature  of  Louisiana,  —  the  McEnery 
legislature  and  the  Kellogg  legislature.  Each  of  them 
elected  a  citizen  to  be  a  member  of  the  Senate  of  the 
United  States. 

The  claims  of  the  two  applicants  for  membership  were 
severally  considered,  and  both,  after  examination  and  due 
consideration,  were  rejected  by  the  Senate,  the  constitu- 
tional and  exclusive  judges  of  the  claims.  Let  us  assume 
that  their  judgment  was  correct.  Neither  legislature  was 
recognized  as  a  constitutional  and  lawful  body,  whose 
presentment  of  a  senator  was  entitled  to  acceptance. 
The  facts  reported  by  the  committee  of  investigation 
showed  that  there  was  no  republican  state  government  in 
Louisiana. 

The  guaranty  clause  of  the  Constitution  of  the  United 
States  required  the  United  States  to  secure  to  every  State 
in  the  Union  a  republican  form  of  government,  but  the 
government  of  the  United  States  failed  in  its  duty,  and 
General  Grant  has  held  Louisiana  from  that  day  to  this. 
Louisiana  ceased  to  be  an  equal  in  the  Senate  of  States 
of  the  Union,  in  the  Senate  of  the  United  States,  —  a 
Senate  of  equals.  Her  people  stand  degraded  and 
wronged  as  a  people  of  a  sovereign  State. 

The  active  politicians  and  party  speakers  of  many  of 
the  States  deny  this  statement. 

Let  us  go  early  into  the  senate  chamber  at  Washing- 
ton. The  roll  is  called.  Massachusetts'  two  senators 


312      THE   REPUBLICAN   PARTY  IN   LOUISIANA. 

answer,  and  so  of  other  States,  until  Louisiana  is  called. 
No  two  names  then  strike  the  ear.  She  has  not  her 
equal  representation,  her  full  right  as  a  sovereign  State, 
in  the  Senate,  to  which  the  Constitution  entitles  her ;  and 
why  ?  She  has  been  deprived  of  it  by  military  tyranny, 
and  Congress  has  failed  to  do  her  justice. 

The  patriotic  senators  of  the  North,  the  East,  and  the 
West  should  not  fail  to  keep  this  fact  in  view.  The 
wrong  done  to  Louisiana  is  a  blow  to  our  constitutional 
system  of  government.  What  to-day  is  done  against  one 
State  may  be  to-morrow  done  against  another,  unless  the 
population  of  a  great  State  should  successfully  resist  the 
act  of  despotism.  The  danger  to  liberty  is  patent,  and 
calls  for  the  sympathy  and  cooperation  of  every  patriot  to 
overcome  it. 

Fellow-citizens  of  Louisiana !  you  are  engaged  in  a 
great  cause,  —  the  assertion  and  restoration  of  your 
rights  as  a  sovereign  people,  and  the  work  of  reform  in 
your  own  State,  by  the  election  of  honest,  capable,  and 
worthy  men  to  the  offices  of  the  State. 

I  congratulate  you  upon  your  choice  of  a  leader.  Gen- 
eral Nichols  is  known  to  us  all.  lie  is  a  well-educated, 
sensible,  plain  man,  in  every  way  worthy  of  confidence 
and  support.  lie  is  honest,  pure,  and  disinterested  ;  not 
connected  with  rings  or  cliques ;  perfectly  free  to  do 
right,  and  conscientiously  bent  on  a  faithful  discharge  of 
his  duties.  He  is  also  a  brave  man,  not  to  be  deterred  by 
any  exhibition  of  military  force  or  any  sounding  procla- 
mation from  addressing  you  without  disturbance  of  tem- 
per and  mind.  Give  your  full  vote  to  him,  and  those 
joined  with  him  on  the  state  ticket.  His  pledge  of  equal 
justice  to  every  citizen,  white  or  colored,  will  be  fully 
redeemed. 


COUNTING  THE  ELECTORAL  VOTE. 

[At  the  request  of  a  great  many  of  Mr.  Hunt's  friends,  he 
wrote  his  views  upon  the  powers  of  Congress,  under  the  Consti- 
tution, in  relation  to  the  electoral  votes  of  Louisiana,  Florida, 
and  South  Carolina,  in  1876.] 

IT  is  a  well-established  historical  fact  that  the  creation 
of  the  Electoral  Commission  was  an  act  passed  by  a  con- 
spiracy of  the  two  great  political  parties  or  factions  of 
the  country  to  subvert  the  Constitution,  and  substitute  in 
its  stead,  for  the  electoral  count,  a  body  of  men  which  each 
of  them  believed  would  be  devoted  to  itself,  and  would, 
therefore,  make  a  fraudulent  account  for  its  favorite.  It 
was  a  gambling  game,  which  each  believed  it  was  safely 
playing  with  loaded  dice  against  its  adversary. 

The  conspiracy  grew  out  of  the  demoralization  of  the 
times,  a  demoralization  brought  about  chiefly  by  the  state 
of  feeling  between  the  two  great  sections  of  the  country 
towards  each  other  long  before  the  war,  and  leading  to 
it,  and,  notwithstanding  reunion  and  apparent  harmony, 
still  existing ;  by  the  corrupting  nature  and  influences  of 
the  war ;  and  by  the  following  administration  of  the 
government  under  a  successful  military  leader  in  a  spirit 
of  favoritism  to  his  followers  and  relatives. 

The  act  creating  the  Electoral  Commission  is  the 
greatest  wrong  that  has  been  done  in  civilized  times  to 
the  cause  of  free  government  and  popular  liberty.  An 
act  of  the  legislature  was  made  to  subvert  a  certain  por- 
tion of  the  Constitution  ;  and  the  result  of  the  subversion 
has  been  the  defrauding  the  majority  of  a  free  people  of 


314      COUNTING  THE  ELECTORAL  VOTE. 

their  right  to  choose  their  chief  magistrate,  and  substitut- 
ing for  an  eminent  citizen,  elected  by  a  majority  of  a 
quarter  of  a  million  of  votes  to  the  office,  an  obscure  par- 
tisan of  General  Grant,  —  a  man  wholly  unknown  to 
fame,  civil  and  military. 

The  wrong  and  the  disgrace  of  this  act,  let  it  be  fairly 
understood,  are  national,  for  it  was  passed  by  the  represen- 
tatives of  the  people  in  the  two  houses  of  Congress,  and 
approved  by  President  Grant,  and  has  been  submitted  to 
by  the  people. 

The  great  misfortune  and  injury  of  the  act  are  the 
shock  it  has  given  to  republican  government,  and  the 
temptation  it  holds  out  to  bad,  ambitious  men  to  make 
further  invasions  and  inroads  upon  the  Constitution  and 
to  destroy  our  free  system  of  government.  It  remains 
for  the  people  to  bear  in  mind  what  has  taken  place,  and 
to  be  careful  with  respect  to  those  to  whom  they  will  give 
their  confidence  as  their  representatives  in  the  future. 

Men  too  easily  overlook  wrong-doing  ;  and  even  the 
learned  and  experienced  suffer  themselves  to  be  betrayed 
into  submission  by  the  success  of  iniquitous  schemes. 
We  have  an  instance  of  this  kind  of  submission  in  a 
pamphlet  which  is  now  before  us. 

Judge  Campbell,  of  this  State,  formerly  of  the  Supreme 
Court  of  the  United  States,  after  writing  a  learned  and 
able  letter  to  the  lion.  Thomas  F.  Bayard,  a  senator  from 
Delaware,  "  on  the  powers  of  Congress  over  the  returns 
for  the  electors,"  approving  in  the  clearest  and  strongest 
terms  the  provisions  of  the  Constitution  on  the  subject, 
—  having  read  "a  synopsis  of  the  report  of  the  joint 
committee  of  the  Senate  and  House  of  Kepresentatives  of 
the  Congress  of  the  United  States  relative  to  the  subject 
he  had  considered,"-  —  pronounces  his  acceptance  of  it  in 
the  following  strain  :  "  It  is  a  measure  of  high  and  mag- 
nanimous statesmanship,  which  manifests  that 


COUNTING  THE   ELECTORAL  VOTE.  315 

'  Great  men  still  live  among  us,  —  heads  to  plan, 
And  tongues  that  utter  wisdom.'  " 

Let  the  errors,  the  manifest  and  dangerous  errors  of 
the  learned,  put  sensible,  plain  men  on  their  guard,  and 
teach  them  to  trust  to  their  own  honest  and  sound  minds 
for  guidance.  Dare  to  be  wise.  Think  for  yourself.  This 
is  the  patriot's  motto. 

The  act  creating  the  commission  was  passed  in  the  fear 
that  the  assertion  and  maintenance  of  the  vote  of  the 
majority  for  a  President  would  break  up  the  peace  of  the 
country,  and  lead  immediately  to  an  internecine  war, 
which  would  probably  end  in  the  destruction  of  the  Union 
and  the  overthrow  of  our  American  system  of  govern- 
ment. The  fear  was  irrational  and  wholly  unworthy  of 
the  citizens  of  our  country  as  patriots  and  lovers  of  lib- 
erty. The  vote  of  the  majority  was  not  the  vote  of  a 
section  of  the  country,  but  the  full  and  fairly  expressed 
choice  of  the  whole  nation.  The  people  of  America 
had  not  so  degenerated  from  the  manly  virtues  of  their 
ancestors,  courage  and  devotion  to  liberty,  as  to  allow 
a  military  leader  and  his  followers  to  destroy  the  re- 
public, and  upon  its  ruins  to  erect  a  fraudulent  and 
tyrannical  dominion  over  them.  Had  the  choice  of  the 
people  happily  fallen  upon  one  of  the  noble  and  high- 
spirited  sons  of  the  republic,  —  such  as  a  Jackson,  a  Clay, 
a  Webster,  or  a  Calhoun, — their  right  of  choice  would 
have  been  asserted  and  respected,  or,  if  in  the  madness 
of  faction  denied  and  opposed  by  arms,  would  have  been 
honorably  maintained  and  triumphantly  established.  And 
if,  in  this  latter  event,  blood  had  been  shed,  copiously 
shed,  as  that  of  our  fathers  was  in  their  revolutionary 
struggle  against  the  greatest  power  of  the  earth,  the  sac- 
rifice upon  the  altar  of  liberty  would  have  been  holy  and 
pleasing  in  the  sight  of  God  and  man. 


31G  COUNTING   THE   ELECTORAL  VOTE. 

The  duty  to  count  includes  the  duty  to  canvass  the 
electoral  votes ;  that  is,  to  weigh  and  determine  any  objec- 
tions made  against  particular  certificates  and  votes,  and 
to  pronounce  judgment.  It  is  a  deliberative  and  judicial 
duty,  the  duty  of  the  two  houses. 

To  inaugurate  a  President  simply  on  the  proclamation 
of  the  president  of  the  Senate  is  a  usurpation  which  the 
people  will  resist.  If  the  two  houses  disagree,  and  if, 
upon  the  count,  the  fact  appears  that  no  person  has  the 
constitutional  majority  of  votes,  the  function  of  the  Sen- 
ate, pro  hac  vice,  ends  ;  the  duty  of  electing  the  President 
devolves,  ipso  facto,  upon  the  House,  and  the  duty  of 
electing  the  Vice-President  upon  the  Senate.  The  House 
is  not  to  wait  for  the  action  of  the  Senate.  It  is  the 
represenative  of  the  whole  people  of  the  United  States, 
and  is  required  "  immediately  "  to  choose  the  President. 

Government  is  essential  to  man's  happiness  and  exist- 
ence. It  must  have  power  to  protect  the  community 
against  internal  violence  and  disorders,  and  against  dan- 
gers from  abroad.  This  power,  unless  wisely  limited  and 
guarded,  will  be  used  by  those  who  administer  and  con- 
trol it  for  their  own  advantage  and  aggrandizement  at 
the  expense  and  to  the  oppression  of  the  rest  of  the  com- 
munity. The  evil  and  dangerous  effect  and  tendency  of 
this  power  and  control  may  be  seen  even  under  our  own 
government,  and  especially  in  the  patronage  and  power 
of  the  President  of  the  United  States. 

The  large  sums  of  money  to  be  collected  and  disbursed 
by  the  government ;  the  host  of  officers,  agents,  and  others 
employed  for  its  administration  ;  the  honors,  emoluments, 
and  other  advantages  it  confers;  the  stations,  salaries, 
patronage,  and  influence  attending  it,  —  all  these  lead  to 
the  formation  of  parties,  a  governing  and  a  governed  por- 
tion of  the  people,  with  the  tendency  to  abuse  of  power  by 


COUNTING   THE   ELECTORAL   VOTE.  317 

the  former.  Mr.  Webster,  in  speaking  of  this  subject, 
declared  that  the  power  and  patronage  of  the  President 
had  become  dangerous  to  liberty,  and  that  if  ever  he  who 
was  the  head  of  the  nation  became  the  mere  head  of  a 
party,  that  party  would,  by  the  power  and  patronage  which 
it  grasped,  maintain  that  power  and  any  policy  in  direct 
resistance  to  the  will  of  a  majority  of  the  people,  unless 
that  majority  became  overwhelming  in  numbers,  or  excited 
only  short  of  civil  revolution.  Mr.  Calhoun  concurred  in 
this  opinion,  and  pronounced  the  patronage  in  the  hands 
of  the  President  too  great  for  the  magistrate  of  a  free 
people,  greater  than  that  of  the  autocrat  of  Russia,  and 
predicted  that  when  the  number  of  office-holders  should 
reach  one  hundred  thousand  the  people  might  almost  as 
well  surrender  their  liberty ;  the  contest  would  be  too 
unequal.  Since  the  expression  of  these  opinions  the  ex- 
ecutive patronage  has  increased.  President  Grant  has,  it 
is  said,  designated  the  Republican  party  as  his  party,  and 
the  number  of  office-holders  has  already  exceeded  one 
hundred  thousand. 

On  whom,  then,  does  the  duty  devolve  of  ascertaining 
and  determining  the  election  ?  It  must  be  on  the  Senate 
and  House  of  Representatives,  before  whom  the  certificates 
are  opened  and  the  votes  are  placed  to  be  counted. 

The  Constitution  is  express  :  if  there  be  no  choice  of 
these  high  officers  by  the  electors,  the  House  of  Represen- 
tatives shall  choose  immediately  by  ballot  the  President, 
and  the  Senate  shall  choose  the  Vice-President.  The  duty 
to  act  immediately  upon  the  contingency  implies  the  duty 
to  ascertain  whether  the  contingency  has  arisen,  —  that 
is,  the  fact  whether  any  candidate  has  obtained  the  consti- 
tutional majority  of  the  electoral  votes ;  and  this  must  be 
done  by  the  houses  who  supervise  and  see  the  result  them- 
selves. "When  the  fact  is  ascertained,  neither  house  can 
control  the  other.  The  House  cannot  interfere  with 


318  COUNTING   THE   ELECTORAL  VOTE. 

the  election  of  a  Vice-President  by  the  Senate,  and,  on 
the  other  hand,  the  Senate  cannot  control  and  direct  the 
House  not  to  elect  a  President.  The  command  of  the 
Constitution  is  peremptory,  —  "  The  House  shall  choose 
immediately  by  ballot ;  "  and  there  is,  under  the  Constitu- 
tion, no  other  tribunal  for  the  purpose. 

To  suppose  that  the  Constitution  required  the  Senate, 
composed  of  the  senators  of  every  State  in  the  Union, 
and  the  House,  composed  of  the  representatives  of  all  the 
people  of  the  United  States,  to  attend  for  the  mere  idle 
purpose  of  looking  on  and  seeing  electoral  votes  counted 
is  childish  ;  and  to  contend  that  the  houses  have  no  au- 
thority or  power  to  examine  into  and  determine  the  truth 
and  validity  of  the  certificates  and  votes,  and  so  to  count, 
ascertain,  and  determine  the  result,  and  to  act  thereon, 
is  unreasonable  and  unconstitutional. 

But  the  attempt  is  now  made  to  establish  a  doctrine 
which,  if  approved,  will  maintain  and  give  effect  to  fraud, 
and  lead  to  the  overthrow  of  American  government. 

It  is  said  "  that  the  certificates  transmitted  by  elec- 
tors of  a  State,  appointed  in  the  manner  its  legislature 
directs,  are  conclusive  evidence  of  the  votes  of  the  State, 
and  that  the  votes  must  be  counted  as  true  and  binding 
on  the  people  of  the  entire  nation,  however  false  and 
fraudulent." 

It  is  impossible  that  the  framers  of  the  Constitution 
intended  to  sanction  such  a  principle.  No  argument  is 
necessary  on  the  subject. 

True  votes,  constitutional  and  honest,  should  be 
counted.  Unconstitutional,  false,  and  fraudulent  votes 
must  be  rejected.  The  power  and  duty  to  count  the  true 
votes  only  necessarily  includes  the  right  and  duty  to 
reject  false  votes.  Honest  certificates,  made  in  due  legal 
form  by  the  proper  state  authorities,  are  undoubtedly 
conclusive  ;  but  certificates,  no  matter  how  formally  and 


COUNTING  THE  ELECTORAL  VOTE.  319 

solemnly  executed,  are  absolutely  void  when  proved  to  be 
tainted  with  fraud,  corruption,  and  immorality. 

Our  entire  system  of  governments,  national  and  state, 
rests  upon  the  people  their  virtue  and  intelligence.  The 
ends  aimed  at  by  all  the  Constitutions  are  truth,  liberty, 
and  justice. 

In  1865  a  joint  rule  of  Congress  was  adopted,  and  has 
since  been  followed.  It  was  framed  by  a  joint  commit- 
tee appointed  to  report  "a  mode  for  examining  the  votes 
for  President  and  Vice-President  of  the  United  States." 

It  has  been  briefly  and  correctly  stated :  "  Not  a  single 
presidential  vote  has  been  counted,  from  1793  to  1872, 
both  inclusive,  in  which  Congress  did  not  assume,  by  ex- 
press and  formal  words,  or  by  action,  or  by  both  together, 
that  it  possessed  the  undoubted  power  and  duty  '  to  ex- 
amine '  the  electoral  votes."  No  electoral  vote  has  ever 
been  counted  against  the  objection  of  either  house.  The 
famous  twenty-second  joint  rule,  "  that  no  vote  objected  to 
by  either  house  should  be  counted,"  only  expressed  what 
had  been  embraced  in  previous  orders,  or  the  action  of 
the  houses,  and  was  the  practical  construction  by  them  of 
their  constitutional  power  in  this  respect. 

The  press  has  laid  before  the  people  of  the  country,  in 
numerous  essays  and  communications,  a  full  and  clear 
statement  and  review  of  the  procedure  or  usual  practice 
of  counting  the  electoral  votes  for  President.  It  has 
always  been  under  the  direction  of  the  two  houses  of  Con- 
gress. In  1789,  when  General  Washington  was  first 
elected  President,  there  was  no  Vice-President,  and  the 
framers  of  the  Constitution  made  a  special  provision  for 
the  election  necessary  to  the  inauguration  of  the  new 
government.  But  at  the  next  election,  in  1793,  the 
houses  named  tellers,  one  for  the  Senate  and  one  for  the 
House,  who  presented  a  list  of  the  votes,  which  was  read 
to  the  two  houses,  and  the  result  was  declared. 


320      COUNTING  THE  ELECTORAL  VOTE. 

In  1797,  John  Adams,  the  Vice-President,  declaring 
the  result  of  the  election,  said:  "By  the  report  of  the 
tellers  appointed  by  the  two  houses,  there  are,"  etc., 
and  proceeded,  "  In  obedience  to  the  Constitution  and 
law  of  the  United  States,  and  to  the  command  of  both 
houses  of  Congress,  expressed  in  their  resolution,  I  de- 
clare," etc.  In  1877  an  objection  was  first  made  to 
receive  an  electoral  vote  in  the  case  of  Indiana,  and  the 
houses  at  once  withdrew  to  consider  it. 

In  counting  the  electoral  votes,  the  houses,  though  in 
joint  session,  are  distinct  bodies.  The  votes  of  the  several 
States  are  offered  in  distinct  regular  order.  Those  not 
objected  to  are  received  as  genuine  and  true,  openly  an- 
nounced, and  severally  entered  and  put  upon  the  list  as 
parts  of  the  count.  Those  challenged  and  objected  to  are 
set  apart  for  consideration  and  for  final  action  until  all 
the  votes  not  objected  to  are  entered  upon  the  list.  If  a 
person  has,  out  of  the  votes  not  objected  to,  the  num- 
ber of  votes  required  by  the  Constitution  for  an  election, 
he  shall  be  the  President,  and  no  further  notice  or  decision 
upon  the  challenged  votes  is  necessary.  If  no  person 
shall  receive  the  requisite  number  of  votes,  and  the  two 
houses  differ  as  to  the  validity  of  the  votes  objected  to,  each 
house  must  act  for  itself,  and  the  duty  of  each  is  to  decide 
for  itself.  The  Constitution  is  express  :  if  no  person  shall 
receive  the  requisite  number  of  votes,  the  House  of  Repre- 
sentatives shall  choose  immediately  by  ballot  the  Presi- 
dent ;  and,  in  a  like  contingency,  the  Senate  shall  choose 
a  Vice-President. 

This  duty  cannot  be  performed  without  ascertaining 
th;it  no  person  has  received  the  requisite  majority;  it 
depends  upon  the  state  of  the  electoral  vote.  The  duty 
is  urgviit. 

The  Constitution  has  not  provided  for  a  notification  to 
the  House  that  there  has  been  no  election  for  President 


COUNTING  THE   ELECTORAL  VOTE.  321 

by  the  electors.  It  leaves  the  House  sole  judge  of  the 
happening  of  the  contingency  calling  for  its  action.  As 
one  of  the  counters  for  the  electoral  vote,  the  House  must 
know  whether  that  vote  has  resulted  in  a  choice.  The 
House  is  therefore  left  to  act  upon  its  own  knowledge, 
and  is  directed,  in  the  contingency  of  which  it  is  itself 
to  be  the  judge,  to  proceed  to  elect  the  President.  The 
Senate  cannot  interfere  and  forbid  the  House  to  elect. 
The  duty,  the  entire  business  of  the  election,  is  confided 
and  confined  to  the  House,  to  men  chosen  directly  by  the 
people.  The  Senate  has  nothing  to  do  with  it. 

Mr.  Morton  has  said :  "  The  effect  of  this  section  is  to 
determine  which  set  [of  electoral  returns]  is  to  be  counted ; 
and  if  the  two  houses  do  not  agree,  neither  set  is  to  be 
counted."  And  again  :  "  The  vote  goes  out ;  the  State 
has  no  vote  ;  because  unless  there  is  some  tribunal  to 
settle  which  vote  shall  be  counted  you  cannot  count  both, 
and  therefore  you  cannot  count  either.  You  must  have 
some  tribunal  to  settle  that  difficulty,  and  what  tribunal 
is  safer  than  the  two  houses  of  Congress?  "  And  again  : 
"  I  do  not  accept  the  suggestion  that  the  Vice-President 
of  the  United  States  has  anything  more  to  do  in  the  busi- 
ness of  counting  the  votes  for  President  and  Vice-Presi- 
dent than  that  specific  duty  which  is  prescribed  for  and 
enjoined  upon  him  by  the  Constitution.  That  duty  is,  in 
the  presence  of  the  Senate  and  House  of  Representatives 
to  open  the  certificates.  There  being  no  other  duty  as- 
signed to  him,  I  infer,  naturally,  that  he  is  to  do  nothing 
more.  ,  .  .  There  can  be,  under  the  Constitution,  no  tribu- 
nal to  decide  on  that  [two  sets  of  returns]  or  any  other 
question  arising  in  the  course  of  counting  the  votes.  The 
duty  is  imposed  upon  the  two  houses  of  Congress.  They 
alone  can  perform  it." 

Senator  Christiaiicy  argued  that  even  without  a  joint 
21 


322  COUNTING   THE   ELECTORAL   VOTE. 

rule  or  Mr.  Morton's  bill,  it  was  a  reasonable  conclusion 
that  if  two  sets  of  electoral  returns  were  presented,  and 
the  two  houses  could  not  agree  upon  the  reception  of  one 
of  the  two,  "  there  is  nothing  to  turn  the  scale  in  favor 
of  either.  .  .  .  Could  the  vote  be  counted?  Certainly 
not."  It  being  urged  that  it  was  a  serious  matter  to 
deprive  a  State  of  its  vote,  Mr.  Morton  replied  :  "There 
are  two  sets  [of  returns].  The  Senate  resolves  in  favor 
of  one  set,  the  House  resolves  in  favor  of  the  other  set. 
There  is  a  disagreement.  The  Senator  from  Ohio  [Mr. 
Thurmaii]  said  that  it  was  the  intention  that  the  State 
should  have  a  vote,  and  so  say  I.  The  intention  is  that 
the  State  shall  have  a  vote,  but  if  the  thing  is  in  that 
condition  that  Congress  cannot  determine  which  is  the 
correct  vote,  it  will  be  the  misfortune  of  the  State  if  the 
vote  is  lost.  That  is  all  you  can  say  about  it." 

The  vote  in  the  Senate  upon  this  measure  shows  that 
the  Republican  party  has  approved  and  adopted  the  true 
constitutional  rule  and  principle  which  has  uniformly 
prevailed  from  the  organization  of  the  government,  that 
it  is  the  right  and  the  duty  of  the  two  houses  to  examine 
the  electoral  votes  and  determine  the  result.  The  ap- 
pointment of  a  special  committee  by  the  Senate  now  in 
session,  and  the  appointment  of  a  special  separate  com- 
mittee by  the  House  to  investigate  the  charges  of  fraud 
against  the  recent  return  of  the  electoral  votes  in  Loui- 
siana, and  the  request  and  quasi-appointment  of  a  party 
committee  of  inquiry  by  President  Grant,  avowedly  for 
the  same  purpose,  and  his  communication  by  message  to 
each  house  of  Congress  of  their  report,  are  further  in- 
stances of  practical  construction  by  the  executive,  as  well 
as  by  Congress,  of  the  duty  of  each  house  to  determine 
for  itself  what  electoral  votes  are  valid  and  shall  be 
counted. 

The  mode  of  procedure  in  this  matter  is  clearly  pointed 
out  by  the  Constitution  and  law. 


COUNTING  THE   ELECTORAL  VOTE.  323 

The  Senate  and  House  of  Representatives  will  assem- 
ble in  the  hall  of  the  House  at  a  time  appointed,  and 
the  president  of  the  Senate  will  be  their  presiding  officer. 
Tellers  will  be  appointed  on  the  part  of  the  Senate,  and 
tellers  on  the  part  of  the  House.  The  certificates  of  the 
electoral  votes  shall  then  be  opened  and  handed  to  them, 
to  be  acted  upon  in  the  alphabetical  order  of  the  States. 
The  tellers  will  read  them  in  the  presence  and  hearing  of 
the  two  houses,  and  make  a  list  of  the  votes  as  they  ap- 
pear ;  and,  the  votes  having  been  counted,  the  result  will 
be  delivered  to  the  president  of  the  Senate,  who  shall 
thereupon  announce  the  state  of  the  vote,  and  the  names 
of  the  persons,  if  any,  elected.  If,  upon  the  reading  of 
any  certificate  by  the  tellers,  a  question  shall  arise  in 
regard  to  counting  the  votes  therein  certified,  the  presid- 
ing officer  shall  state  the  same  ;  whereupon  the  Senate 
shall  withdraw,  and  the  question  shall  be  submitted  to  it 
for  its  decision.  And  the  Speaker  of  the  House  shall,  in 
like  manner,  submit  the  question  to  the  House  of  Repre- 
sentatives for  its  decision.  When  the  two  houses  have 
voted  they  shall  immediately  reassemble,  and  the  presid- 
ing officer  shall  announce  the  decision  of  the  question. 

If  persons  have,  out  of  the  votes  counted,  the  number 
of  votes  required  by  the  Constitution  for  an  election,  they 
shall  be,  respectively,  the  President  and  Vice-President. 
If  no  person  receive  the  requisite  number  of  votes  for 
President,  the  House  of  Representatives  shall  choose 
immediately,  by  ballot,  the  President,  and,  in  a  like  con- 
tingency, the  Senate  shall  choose  a  Vice-President. 


TRIBUTE   TO   MR.   TULANE. 

[Mr.  Paul  Ttilane,  a  prominent  and  benevolent  citizen  of 
Louisiana,  donated  about  one  million  dollars  to  the  University  of 
that  State.  At  the  opening-  of  the  law  school  Professor  Hunt 
paid  the  following  tribute  to  Mr.  Tulane.J 

GENTLEMEN,  —  Welcome !  welcome  to  this  hall  of 
science,  this  school  of  profitable  knowledge  to  the  in- 
dustrious and  reflecting  student !  A  short  delay  in  the 
opening  of  the  college  has  been  occasioned  by  the  resig- 
nation of  Professor  Eustis,  and  by  the  duty  of  the  Faculty 
to  supply  the  vacancy  properly.  That  duty  has  just  been 
happily  performed,  and  the  usual  course  of  lectures  is 
commenced  under  auspicious  circumstances  by  a  complete 
Faculty. 

Since  the  last  season  of  the  college  a  great  change  has 
taken  place  in  the  fortune  and  administration  of  the 
University  of  Louisiana,  and  in  the  destination  of  the 
University  to  promote  public  education  in  the  State.  Mr. 
Paul  Tulaue,  a  wealthy  and  public-spirited  citizen,  for- 
merly a  merchant  of  this  city,  has  beneficently  donated 
about  one  million  dollars  for  fostering,  maintaining,  and 
developing  the  University  of  Louisiana,  and  of  so  expand- 
ing it  as  to  create  it  a  great  "•  University  of  the  City  of 
New  Orleans."  And  it  is  further  announced  by  his 
honorable  and  trustworthy  friends  that  he  will  increase 
his  noble  gift  twofold  more. 

Moved  by  this  generous  and  philanthropic  act  in  favor 
of  public,  education  in  this  State,  the  legislature  of  the 
State  has  passed  an  act  to  receive  the  donation  as  made, 


TRIBUTE   TO   MR.   TULANE.  325 

and,  in  accordance  with  the  views  of  the  donor,  to  change 
the  administration  of  the  University,  substituting  a  body 
of  intelligent,  well-known  citizens  of  high  character  in  the 
city  of  New  Orleans  as  a  permanent  board  of  administra- 
tors for  the  late  board,  as  legally  constituted,  and  empow- 
ering the  new  board  to  fill  in  the  future  the  vacancies 
that  may  occur  in  their  body.  The  board  thus  made  is 
purely  of  an  honorary  character,  and  will  discharge  its 
duties  disinterestedly  and  with  a  single  view  to  the  public 
good. 

And  the  legislature  of  the  State,  properly  appreciating 
the  noble  act  of  Mr.  Tulane  for  the  instruction  of  his 
fellow-men,  has  fitly  incorporated  his  name  with  that  of 
the  University  which  he  has  sustained,  and  contributed  to 
enlarge  and  increase  in  fame  and  usefulness.  I  have 
thought  it  my  duty  to  communicate  this  information  to 
you,  gentlemen,  as  students  of  the  law  college,  a  depart- 
ment of  the  Tulane  University  of  Louisiana.  And,  gen- 
tlemen, I  cannot  conclude  these  preliminary  remarks 
without  expressing  my  conviction  that  our  University  is 
destined  to  become,  under  the  government  of  its  public- 
spirited,  able,  and  learned  President,  and  its  enlightened 
and  liberal  board  of  administrators,  what  its  generous 
patron  expressly  desires  it  to  be,  —  a  great  university  in 
the  city  of  New  Orleans  and  an  honor  to  the  State  of 
Louisiana,  imparting  the  manifold  and  various  blessings 
of  liberal  and  useful  knowledge  to  her  sons  and  to  their 
worthy  brethren,  the  youth  of  her  surrounding  sister 
States. 


ADDRESS   TO   MEDICAL   STUDENTS. 

[Remarks  made  by  President  Hunt  to  graduating  medical 
students  of  the  University  of  Louisiana.] 

GENTLEMEN,  —  I  congratulate  you  upon  the  comple- 
tion of  your  collegiate  studies,  and  hail  you  as  doctors  of 
medicine.  You  are  about  to  enter  upon  the  practice  of  a 
profession  that  commands  the  admiration,  the  respect  and 
gratitude  of  all  men,  civilized  and  barbarous. 

The  Greek  mythologists  deified  JEsculapius  ;  and  their 
scholars  tell  us  that  Pluto,  incensed  at  his  withholding 
those  he  claimed  as  his  subjects,  induced  Jupiter  to  strike 
him  dead  with  thunder.  Under  the  benign  influence  of 
the  religion  of  our  day,  you,  gentlemen,  sons  of  yKscula- 
pius,  free  from  fear  of  angry  deities,  are  left  at  liberty  to 
practice  your  mission  with  the  blessings  of  God  and  man. 
Yours  is  indeed  a  noble  profession ;  it  is  essential  to  the 
well-being  and  happiness  of  society. 

Health  is  the  first  blessing  of  life.  It  stimulates  to 
action,  gives  strength  to  labor,  and  crowns  industry  with 
success  and  joy.  It  is  the  source  of  our  sweetest  affec- 
tions and  the  charm  of  our  brief  existence. 

It  is  impossible  to  free  the  condition  of  man  from  death. 
But  disease  does  no  good  to  the  individual  or  to  society. 
It  is  attended  with  pain  and  anguish  of  body  and  mind, 
with  great  uneasiness  and  anxiety  to  the  relatives  of  the 
sick.  It  paralyzes  productive  industry,  and  is  an  unmixed 
evil ;  for  which,  however,  Providence  has  furnished  man, 
by  his  intellectual  faculties,  the  means  of  alleviation  or 
cure. 


ADDRESS   TO   MEDICAL   STUDENTS.  327 

It  is  then  that  the  physician  is  sought  for  aid.  Having 
studied  the  structure  of  man,  and  the  derangements  and 
diseases  which  assail  it,  having  studied  also  his  intellec- 
tual structure,  his  passions,  motives  of  action,  and  habits, 
he  eradicates  disease,  assuages  pain  in  the  suffering  body, 
and  ministers  to  the  mind  diseased. 

Here,  gentlemen,  I  would  impress  upon  you  a  full 
sense  of  the  charge  that  you  have  assumed,  and  of  its 
influence  and  service  to  the  cause  of  morality  and  religion. 
It  is  to  minister  to  the  ailments,  sufferings,  and  afflictions, 
corporeal  and  mental,  of  your  brother  man ;  to  raise  him 
from  the  bed  of  sickness,  and  restore  him  to  health, 
strength,  and  usefulness  ;  to  minister  to  his  mind  diseased  ; 
to  calm  his  passions,  and  regulate  and  direct  his  affections  ; 
to  soothe  his  wounded  spirit ;  to  lift  him  from  despon- 
dency, grief,  despair ;  to  cheer,  to  animate  and  impel  him 
to  the  exercise  of  his  reason  and  all  his  powers  and  ener- 
gies. A  seasonable  word,  says  an  eminent  and  wise  son 
of  Massachusetts,  unobtrusively  uttered  by  a  serious  and 
enlightened  man,  who  stands  at  the  bedside,  clothed  by 
the  imagination  of  the  patient,  if  not  in  reality,  with  the 
power  of  health,  of  life  and  death,  will  often  sink  deep 
into  the  heart,  and  prove  a  safeguard  of  morals  and  char- 
acter. 

Truly,  gentlemen,  this  is  an  inspiring  and  noble  under- 
taking. For  this  you  have  fitted  yourselves  by  scientific 
labor  and  moral  training.  The  occasion  and  the  exercises 
of  the  day  do  not  admit  of  my  expatiating  on  the  field 
here  opened  for  the  exercise  of  the  intellect  and  the 
cardinal  virtues  of  the  heart.  It  only  remains  for  me  to 
express  the  wish  and  trust  that  your  efforts  to  be  useful 
and  to  minister  relief  may  meet  with  due  success,  and  be 
crowned  with  the  blessings  of  Providence  and  the  love 
and  honor  of  vour  fellow-men. 


SPEECH  FOR  BELL   AND   EVERETT. 

[The  following  description  of  a  Bell  and  Everett  political 
meeting,  held  in  Philadelphia  on  August  15,  1860,  is  taken  from 
the  "  Philadelphia  Enquirer  "  of  that  date.] 

THE   BELL   AND   EVERETT   CAMPAIGN. 
SERENADE  TO   HON.  RANUELL   HUNT   OF   LOUISIANA. 

ENTHUSIASM    AND   EXCITEMENT. 

THE  citizens  of  Philadelphia,  under  the  lead  of  many 
personal  and  political  friends  of  Hon.  Randell  Hunt  of 
Louisiana,  tendered  him  a  public  serenade  last  evening 
at  the  Continental.  The  entire  affair,  which  was  more 
immediately  under  the  auspices  of  the  Minute  Men  of 
Philadelphia,  passed  off  in  the  most  pleasant  and  credit- 
able manner. 

THE    MINUTE    MEN. 

As  early  as  seven  o'clock  the  scene  presented  at  the 
club-room  at  the  northeast  corner  of  Tenth  and  Chestnut 
streets  afforded  a  gratifying  indication  of  the  enthusiasm 
with  which  the  Minute  Men  had  entered  into  the  spirit 
of  the  affair.  It  is  described  by  those  who  were  fortunate 
enough  to  be  present  to  have  been  a  "perfect  jam.'" 
Tlic  stairs,  sidewalks,  and  street  were  crowded,  thus  ren- 
dering access  to  the  hall  an  utter  impossibility. 

At  eight  o'clock,  the  Club,  accompanied  by  Beck's  full 
brass  band,  marched  through  a  number  of  our  most  popu- 
lar thoroughfares. 


SPEECH   FOR  BELL  AND   EVERETT.  329 

SCENE    AT    THE    CONTINENTAL. 

At  half  past  nine  o'clock,  as  they  arrived  in  front  of  the 
Continental,  the  scene  presented  from  the  balcony  ex- 
ceeded in  interest  anything  we  have  ever  been  privileged 
to  behold,  from  the  same  standpoints,  either  in  the  politi- 
cal or  in  the  Japanese  line.  The  streets,  from  curb  to 
curb,  were  literally  packed  with  a  dense  immobile  mass 
of  humanity,  while  the  right  of  way,  as  far  as  the  pas- 
senger railway  cars  were  concerned,  was  for  the  nonce 
totally  ignored. 

Cheers  and  shouts  for  the  Union  candidate  rent  the  air, 
while  the  ringing  of  innumerable  bells  added  emblemati- 
cal significance  to  the  popular  tumult.  As  the  head  of 
the  procession  reached  Ninth  Street,  a  number  of  Southern 
belles,  guests  of  the  hotel,  stood  upon  the  balcony  and  waved 
their  handkerchiefs  in  expression  of  their  "  sentiments," 
and  general  adherence  to  the  tenor  of  the  inscriptions, 
mottoes,  etc.,  upon  the  transparencies.  As  some  of  these 
were  unusually  expressive  and  extremely  well  worded,  we 
have  jotted  down  a  few  :  — 

"  The  Minute  Men  of  '76  and  ;56." 

"  Beware  !  a  base  counterfeit !  The  Continental  issue 
of  185G." 

"  Query  —  Are  Abe's  rails  used  on  the  underground 
railroad  ?  " 

"  Rails  are  a  good  institution,  but  we  do  not  intend  to 
ride  on  them  to  the  "\Vhite  House." 

"  Sambo  can't  ring  this  bell !  " 

"  Uncle  Sam  says  Abe  can't  be  elected  because  he  keeps 
colored  company." 

At  the  head  of  the  procession  was  a  large  bell,  which 
was  rung  incessantly  until  the  commencement  of  Mr. 
Hunt's  speech,  and  at  those  appropriate  points  where  the 
"  applause  came  in." 


330  SPEECH   FOR   BELL   AND   EVERETT.1 

One  of  the  largest  and  most  beautiful  transparencies  in 
the  line  was  one  representing  the  American  patriot  in  the 
time  of  '7G,  leaving  his  ploughshare  to  hasten  to  the  field 
of  battle.  Two  medallion  portraits  of  the  respective 
Union  candidates  were  also  exhibited,  eliciting  general 
commendation  for  their  faithfulness  and  artistic  coloring. 
We  cannot  avoid  mentioning  a  pictorial  representation 
of  Old  Abe  standing  on  the  shores  of  the  Ohio,  with  a 
firebrand  in  his  hand,  and  about  to  throw  a  stone  or  two 
at  Kentucky. 

At  one  point,  previous  to  the  commencement  of  the 
speaking,  some  individual,  whose  excited  feelings  were 
perfectly  natural  under  the  circumstances,  proposed  three 
cheers  for  Bell,  which  were  given  with  stentorian  energy. 
Cheers  were  also  proposed  for  Stephen  A.  Douglas,  but  a 
low  muttering  was  the  only  response.  About  half  past 
nine  o'clock,  Judge  King,  of  this  city,  stepped  upon  the 
balcony,  and  said  :  — 

"Fellow-citizens,  I  introduce  to  you  Mr.  Hunt  of  Louisi- 
ana. [Cheers.]  lie  is  one  of  the  electors  at  large  for  the 
State  of  Louisiana,  and  when  you  have  heard  him  I  think 
you  will  agree  with  me  that  the  no  chance  of  John  Bell  is 
an  obsolete  idea.  [Cheers.]  " 

SPEECH    OF    THE    HOX.    KANDELL    HUNT. 

FELLOW-CITIZENS,  —  I  appear  before  you  to-night  at  the 
request  of  the  Executive  Committee  of  the  Union  Con- 
stitutional party  of  Pennsylvania  [cheers],  a  private 
citizen,  unknown  to  more  than  two  or  three  of  this  vast 
multitude  that  I  see  before  me.  It  seems  yet  to  have 
been  sufficient  to  state  to  you  that  1  appear  before  you  an 
elector  selected  by  the  Union  party  of  Louisiana,  as  a 
candidate  for  elector  of  President  of  the  United  States 
from  Louisiana,  to  insure  this  heartfelt  greeting.  I  thank 
you  for  it.  In  the  name  of  the  Union  party  of  Louisiana 


SPEECH  FOR  BELL  AND   EVERETT.  331 

I  receive  it  as  a  token  of  the  brotherly  feeling  that  the 
Unionists  of  Pennsylvania  feel  for  the  Unionists  of  the 
South.  [Cheers.] 

I  know,  fellow-citizens,  where  I  am.  I  am  in  the  old 
State  of  Pennsylvania,  —  one  of  the  glorious  old  thirteen, 
famous  for  her  love  of  liberty,  the  Union,  and  the  Consti- 
tution. [Cheers.]  The  keystone  of  the  federal  arch  will 
support  this  Union,  and  by  the  aid  of  which  this  Union 
will  stand,  I  trust,  forever.  [Cheers.]  I  am  in  the  city 
of  Philadelphia,  —  this  beautiful  city,  with  its  magnifi- 
cent private  structures,  with  its  splendid  public  edifices, 
abounding  in  brave  men  and  beautiful  women.  [Cheers.] 
Dear,  no  doubt,  to  every  Pennsylvania!!,  and  equally  dear 
to  every  true-hearted  American,  for  this,  that  in  her  Hall 
of  Independence,  in  the  Congress  of  1776,  was  passed  the 
glorious  resolution  which  declared  these  colonies  no  longer 
subject  to  the  King  of  Great  Britain,  but  free  and  inde- 
pendent States.  [Cheers.] 

Yesterday  I  went  down  to  old  Independence  Hall  to 
refresh  my  patriotism  and  kindle  anew  the  fire  of  love 
of  country,  which  has  never  yet  left  my  heart ;  and 
as  I  walked  around  and  beheld  the  old  bell  that  pro- 
claimed "  liberty  throughout  the  land  and  unto  all  the 
inhabitants  thereof,"  and  as  I  turned  my  face  to  the 
venerated  statue  of  that  man  who  above  all  mortals  must 
deserve  the  reverence  of  the  Sons  of  Liberty,  George 
Washington  [prolonged  cheers],  and  as  I  looked  around, 
fellow-citizens,  as  I  beheld  these  ancient  things  connected 
with  our  revolutionary  history,  as  the  grand  swelling  sen- 
timents of  liberty  filled  my  heart,  I  could  not  help  ex- 
claiming to  myself,  "  Glorious  Philadelphia !  [Cheers, 
and  cries  of  "  Good  !  "]  Glorious  Pennsylvania  !  " 

Born  thousands  of  miles  away  from  this  spot,  1  yet  feel 
that  I  have  a  part  of  the  glory  and  fame  of  Washington. 
I  know  that  I  was  born  far  from  this  spot,  but  is  patriot- 


332  SPEECH   FOR   BELL  AND   EVERETT. 

ism  connected  with  a  single  spot  ?  No,  fellow-citizens.  It 
consists  in  the  love  of  the  fame  of  the  great  men  of  our 
country,  and  I  tell  you  now  my  heart  swells  within  me 
up  to  my  very  lips  as  I  say  I  am  proud  to  address  you 
here  this  night  as  fellow-citizens  of  the  United  States. 
[Cheers.] 

I  have  nothing  new  to  tell  you  :  I  have  nothing,  fellow- 
citizens,  to  say  to  you  with  which  you  are  not  already 
familiar,  —  that  you  have  not  already  heard  from  your 
favorite  orators,  or  that  you  will  not  hereafter  hear  from 
orators  in  better  terms  and  in  more  glowing  language 
than  I  can  possibly  use ;  yet,  as  I  have  been  called  upon 
to  address  you,  as  I  am  an  elector  at  large  in  the  support 
of  the  glorious  Union  ticket  that  has  been  presented  to 
the  people  of  the  United  States,  I  felt  that  I  would  be 
derelict  to  my  duty  if  I  did  not  come  forward  and  say 
something  to  you. 

Fellow-citizens,  we  are  almost  upon  the  eve  of  a  presi- 
dential election.  Whenever  this  time  comes  round,  when- 
ever the  lustrum  in  which  we  are  to  elect  a  President  of 
the  United  States  occurs,  there  is  always  something, 
some  question  of  great  importance,  before  the  people. 
But  it  appears  to  me  that,  from  the  origin  of  our  gov- 
ernment to  the  present  day,  there  has  never  been  any 
question,  any  issues,  more  important  than  these  that  are 
now  presented  to  the  public ;  for  they  are  not  only  issues 
that  affect  the  policy  of  the  country,  but  they  are  issues 
that  affect  the  very  existence  of  the  government. 

It  is  now,  fellow-citizens,  some  seventy-two  years,  or 
nearly  seventy-two,  since  the  Constitution  of  the  United 
States,  under  which  we  now  live,  went  into  operation. 
During  that  period  numerous  elections  have  been  held  for 
Presidents  of  the  United  States  :  most  of  these  elections 
have  been  made  by  the  electors,  and  a  few  of  them 
have  been  made  by  the  House  of  Representatives  of  the 


SPEECH   FOR  BELL  AND   EVERETT.  333 

Congress  of  the  United  States.  All  this  has  been  done 
peaceably  and  calmly,  —  everything  in  good  order,  —  our 
government  efficient.  Presidents  have  died,  and  Vice- 
Presidents  have  succeeded  them.  The  laws  have  been 
enforced,  —  everything  done  without  commotion,  without 
popular  tumult,  without  any  undue  excitement,  without 
any  relaxation  of  the  law. 

Now,  before  this  Constitution  went  into  operation,  or 
rather,  just  as  it  was  going  into  operation,  it  would  be 
difficult  for  any  man  to  describe  the  deplorable  condition 
of  our  country.  The  State  had  the  honor  of  regulating 
commerce  for  herself.  The  consequence  was  that  a  State 
like  Pennsylvania,  ripe  for  manufactures,  anxious  perhaps 
to  encourage  her  domestic  industry,  might  feel  it  her 
duty  to  lay  an  impost  upon  the  importation  of  goods  from 
abroad. 

But  if  she  did  so,  her  neighboring  State,  not  ready  for 
manufactures,  not  yet  prepared  for  their  introduction, 
believing  that  it  would  be  for  her  advantage  to  introduce 
goods  without  any  duties  whatever,  could  effectually 
countervail  all  the  legislation  of  Pennsylvania.  And 
why?  Because  the  goods,  when  imported  into  any  one 
State,  could  be  carried  immediately,  free  of  duties,  into 
another  State.  Thus  it  happened,  I  say,  that  at  the  time 
when  the  Constitution  of  the  United  States  went  into 
operation,  the  policy  of  one  State  was  frustrated  by  the 
policy  of  another.  Did  one  State  attempt  to  encourage 
its  domestic  industry,  it  was  checked  by  the  legislation  of 
another  State.  There  was  a  commerce  of  Massachusetts, 
a  commerce  of  Rhode  Island,  a  commerce  of  Pennsylva- 
nia, but  there  was  no  commerce  of  the  United  States. 

The  consequence  was  that  we  were  completely  at  the 
mercy  of  foreign  nations,  and  especially  at  the  mercy  of 
our  great  trader,  Great  Britain,  whom,  though  we  had 
conquered  in  war  and  achieved  our  independence,  we  were 


334  SPEECH   FOR   BELL   AND   EVERETT. 

yet  subjected  to  by  our  commercial  laws.  Well,  fellow- 
citizens,  for  the  purpose  of  correcting  this,  for  the  pur- 
pose of  making  our  commerce  one,  for  the  purpose  of 
creating  a  national  government  for  national  purposes, 
leaving  a  local  government  for  merely  local  purposes,  the 
present  Constitution  of  the  United  States  was  adopted; 
and  what  has  been  the  consequence? 

Immediately  our  country  entered  upon  a  career  of  pros- 
perity such  as  the  sun  of  Heaven  had  never  before  witnessed 
in  the  history  of  the  world.  Look  at  our  condition  then  ; 
look  at  it  now  !  While  we  were  a  nation  consisting  of 
three  or  four  millions  of  persons,  what  are  we  now?  The 
census  returns  are  not  completed,  but,  beyond  a  doubt, 
our  population  will  swell  to  thirty-two  millions  of  people. 
Instead  of  a  narrow  strip  along  the  border  of  the  Atlantic 
Ocean,  we  have  a  vast  extent  of  territory,  extending  from 
the  Atlantic  clear  over  to  the  Pacific  Ocean.  From  the 
St.  Lawrence  to  the  Gulf  of  Mexico  our  territory  extends. 

Our  States  from  thirteen  have  advanced  to  thirty -three. 
Thus,  fellow-citizens,  advancing  in  territory,  thus  advan- 
cing in  population,  we  advance  at  the  same  time  in  the 
arts  and  in  the  sciences,  in  refinement  and  in  literature. 
Liberty  was  preserved,  —  liberty  of  speech,  liberty  of  con- 
science, liberty  of  action,  liberty  to  speak,  the  highest 
liberty  that  man  can  enjoy  under  Heaven.  [Cheers.] 

All  these  liberties  we  have  enjoyed.  Look  at  our 
material  progress  !  Look  at  our  progress  in  agriculture  ; 
look  at  our  progress  in  manufactures  ;  look  at  our  pro- 
gress in  commerce  !  Why,  our  agriculture  is  so  varied 
that  we  produce  almost  everything  that  can  be  found 
upon  the  face  of  the  earth.  Look  what  our  manufac- 
turers have  done!  Aided  by  the  proper  encouragement 
of  government,  our  home  manufacturers  have  learned  to 
imitate  the  foreign  manufactures,  and  so  work  at  home 
materials  until  they  equal  the  manufactures  from  abroad. 


SPEECH   FOR   BELL   AND   EVERETT.  335 

Look  at  our  commerce !  See  how  it  spread  its  wings 
when  the  little  restraints  and  bars  of  local  legislation  and  of 
state  provisions  were  removed !  Like  an  uncaged  eagle 
it  flew  abroad,  to  every  portion  of  the  earth.  See  the 
sails  of  our  commerce  whiten  every  sea,  and  our  govern- 
ment has  been  tried  in  peace  and  in  war.  In  times  of  a 
little  local  excitement  there  may  have  appeared  some 
little  opposition  to  law,  but  where  upon  the  face  of  God's 
earth,  in  despotic  Russia,  in  France,  in  more  enlightened 
and  liberal  England,  where  has  the  law  been  so  con- 
stantly and  so  faithfully  enforced  as  it  has  been  in  the 
general  government  of  the  United  States  ?  I  say,  fellow- 
citizens,  nowhere  !  [Cheers.]  And  while  this  has  been 
done,  while  our  commerce  has  increased,  while  the  re- 
sources of  our  country  have  become  infinite  and  unex- 
haustible,  what  has  been  done  for  the  glory  and  renown 
of  this  free  republic  on  earth?  Where  else  is  there  a 
leader  of  liberty  throughout  the  enlightened  world  ? 
where  the  man  who,  when  he  hears  the  sound  of  lib- 
erty, does  not  turn  his  eyes  instinctively  to  America? 
[Cheers.] 

I  have  said  this  government  has  been  tested  in  peace 
and  in  war.  In  peace  she  has  executed  the  laws  in  spite 
of  the  resistance  of  lawless  men.  In  spite  of  the  threats 
of  state  authorities,  the  general  government,  calm  and 
unmoved,  has  gone  on  and  executed  the  laws ;  it  has  pro- 
tected the  liberties  of  every  man  before  me.  I  say  it, 
and  I  challenge  denial  that  it  has  done  all  this  without 
infringing  upon  the  liberty  of  a  single  individual. 
[Cheers.]  Who  can  point  out  a  man  who  has  been  de- 
prived of  his  liberty  or  property  by  the  government  of 
the  United  States  ? 

And  if  these  are  the  operations  of  government  in  peace, 
what  have  they  been  in  war?  Shall  I  refer  to  the  War 
of  1812  ?  —  for  I  pass  by  now  at  once  our  glorious  Revo- 
lution. 


336  SPEECH   FOR   BELL   AND   EVERETT. 

[The  speaker  then  referred  in  detail  to  the  policy 
of  the  general  government  during  the  war  with  Mexico. 
He  explained  that  the  Constitutional  Union  party  had 
had  its  origin  in  the  desire  of  the  good  men  of  all  sections 
of  the  country  to  put  an  end  to  the  unceasing  crimina- 
tions and  recriminations  of  the  Northern  and  Southern 
States.] 

We  have  formed  a  party  that  has  carried  Kentucky 
by  nearly  thirty  thousand  majority  ;  we  have  formed  a 
party  that  will  carry  Virginia  as  sure  as  to-morrow's  sun 
will  rise.  Tennessee  is  with  us,  and  North  Carolina  will 
be  with  us.  They  tell  you  Louisiana  is  unsound.  1 
deny  it.  She  is  sound  to  the  very  core.  She  is  true  to 
the  Union.  She  will  vote  for  John  Bell  and  Edward 
Everett.  [Cheers.] 

I  tell  you,  gentlemen,  the  South  will  present  almost  a 
united  front.  [Cheers.]  South  Carolina  will  be  misled 
by  her  politicians,  it  is  possible  that  Georgia  may  go 
astray,  but  I  venture  to  say  that  at  least  twelve  out  of  the 
fifteen  States  will  cast  their  electoral  votes  for  John  Bell 
and  Edward  Everett.  [Cheers.] 

I  believe  that  you  can  do  much.  I  believe  that  you 
can  effect  what  you  desire  if  you  only  go  to  work,  and 
my  hope  is  in  this.  You  have  not  heretofore  done  your 
best ;  many  of  you  have  abstained  from  voting.  Do  your 
duty,  and  may  God  be  with  us  and  protect  our  country 
and  our  liberty.  [Cheers.] 

On  the  conclusion  of  this  eloquent  speech,  Hon.  H. 
Bucher  Swoope,  being  loudly  called  for,  came  forward  and 
briefly  addressed  the  assemblage.  He  said  that  the  hour 
was  extremely  late.  He  hoped  he  would  have  other  op- 
portunities during  the  campaign  of  addressing  his  friends. 
At  present  he  would  not  detain  them,  and  therefore  pro- 
posed that  the  meeting  should  adjourn. 


INDEX. 


ABRAHAM,  190. 

Act  of  Navigation,  178,  208. 

Adams,  John,  320. 

Addison,  Joseph,  describes  a  lady's 
dress,  202. 

"Address  to  Law  Students,"  214-225. 

"Address  to  Medical  Students,"  326, 
327. 

^Esculapius,  326. 

Africa,  money  of,  189. 

Agriculture,  196. 

Alexander,  208. 

Aliens,  naturalization  of,  42,  43;  acts 
of  South  Carolina  conferring  rights 
upon,  47. 

Allegiance,  term  defined,  50;  highest 
and  greatest  obligation  of  duty,  50; 
due  only  to  the  United  States,  50, 
54,  02;  under  the  feudal  system,  53; 
of  paramount  obligation,  53,  62;  to 
the  United  Colonies,  54;  treason  the 
highest  breach  of,  55,  125;  has  a  cit- 
izen a  right  to  renounce'?  167;  the 
American  view,  167;  the  English 
opinion.  168:  Blackstone's  comments 
on,  168:  how  can  it  be  perpetual? 
169  :  of  the  French,  169. 

America.  Sec  North  America  and 
South  America. 

America,  principles  of  colonization  in, 
6-9. 

''American  Cyclopaedia,"  quoted,  275, 
291. 

American  government,  whole  system 
of,  popular.  92. 

Amphictyonic  Council,  inscription  of, 
24,  170. 

Auastasius.  Greek  emperor,  232. 
oo 


Anderson,  Thomas  C.,  case  of,  25-27, 
38,  39. 

Appeals  in  criminal  cases,  in  Louisiana, 
118. 

Archytas,  the  philosopher,  163. 

Arkwright,  Sir  Richard,  203. 

Armies  without  discipline,  positive 
evils,  21. 

Articles  of  Confederation,  20,  54-56, 
124 ;  prepared  by  Congress,  182 : 
ratification  of,  182",  184;  but  a  digest 
of  the  powers  delegated  by  the  peo- 
ple, 182;  their  defects,  'l84,  186; 
contained  no  executive  power,  184 ; 
187,  208-210,  221. 

Autun,  Bishop  of,  276. 

Bacon,  Lord,  quoted,  23,  44,  133,  246. 

Bank  of  North  America,  102. 

Banking,  free,  established  in  New 
York,  102  ;  the  system  needed  in 
Louisiana,  104;  the  system  described, 
105  ;  inducements  to  capitalists,  106. 

Bankrupt,  a  competent  witness,  242. 

Bank>,  General,  283. 

Barter,  189;  Homer's  picture  of,  190. 

Bay,  Judge,  decision  in  Grantstein's 
case,  45:  reversal,  63. 

Bayard,  Thomas  F.,  314. 

Beardsley,  Attorney-General,  opinion 
cited,  10.'!. 

Bell  and  F.verett,  speech  for,  328-336. 

Bentham,  Jeremy.  230,  246. 

Black,  Adam.  203. 

Black.  Judge,  essay  on  the  Electoral 
Conspiracy  quoted,  32,  36. 

Blackstone.  defines  denizen,  48;  alle- 
giance, 50. 


338 


INDEX. 


Boston,  miles  of  railroads  radiating 
from.  110;  valuation  of,  1834-51,  110. 

Britain,  her  victories  in  America,  10. 

Bronson,  Attorney  -  General,  opinion 
cited,  103. 

Brougham,  Lord,  quoted,  238. 

Buchanan,  President,  position  toward 
the  South,  255,  204. 

Burke,  Edmund,  quoted,  11,  220. 

Burlamaqui,  52. 

Calhoun,  John  C.,  255,  297,  317. 
Campbell,  Judge  John  A.,  Go;  approval 

of  act  creating  Electoral  Commission, 

314. 

Carthage,  208. 

Cato,  87. 

Charles  IX.  of  France,  20,  148,  149. 

Charters  of  the  American  colonies,  14. 

Chatham,  Lord,  219. 

Chemistry,  131. 

Choate,  Rufus,  11,  218. 

Christiancy,  Senator,  321. 

Cicero,  on  the  law  of  nature,  144,  145. 

"Citizenship  and  Allegiance,"  40-03. 

Citizenship  in  the  United  States,  con- 
ditions of,  42,  43. 

Civil  Code  of  Louisiana,  231,  237.  245. 

Civilization,  man's  natural  state,  150. 

Classics,  importance  of  their  study, 
223. 

Clingman,  Senator.  253. 

Coke,  Lord,  on  allegiance,  50. 

Colonies,  formation  of,  among  the  old- 
est events  of  hislorv,  171;  Circeian, 
171,  172.  175:  Roman,  173,  175; 
Spanish,  174;  English.  174,  170. 

Colonies,  American,  taxed  without 
their  consent,  170;  their  .-I  niggle  for 
librrtv,  177:  independence  declared, 
177,  181;  transformed  into  States, 
177;  union  essential  to  their  safety, 
178;  the  Albany  plan  of  federal  gov- 
ernment, 179 ;  necessity  of  union  felt, 
180:  the  Continental  Congress,  180, 
181  :  Articles  <>f  Confederation,  182. 
1S4,  isi;.  1X7:  their  union  a  league  of 
friend-hip,  !S4. 

Colnmbu-,  0:  perseverance  of,  135, 
174. 


Commands,  unlawful,  21. 

Commerce,  origin  of,  188,  189;  inter- 
nal, 190,  191:  elevating  influence  of, 
196-198  :  facilities  of  communication 
due  to,  198  200;  comforts  derived 
from,  202;  promotes  intercourse,  202, 
203;  precedes  refinements  in  home 
manufactures,  202;  stimulates  do- 
mestic industry,  203;  diffuses  know- 
ledge, 203  ;  spirit  of,  congenial  with 
liberty,  204 ;  augments  the  power  of 
the  state,  207. 

Commerce,  American,  during  the  Rev- 
olutionary War,  208  :  Confederacy  no 
power  to  regulate,  208;  left  to  con- 
trol of  States,  209 ;  consequences, 
209:  Virginia  proposes  a  convention 
to  make  regulations,  209;  which 
leads  to  the  adoption  of  the  Consti- 
tution, 209;  Congress  given  power  to 
regulate,  211  ;  the  power  vital  to  the 
Union.  211;  profound  wisdom  of  the 
grant,  212. 

Communion,  indispensable  to  man, 
102;  an  element  in  his  progress,  162; 
his  right,  102:  enjoyment  from,  103. 

Confederation,  Articles  of.  See  Arti- 
cles. 

Congress,  Continental.  19.  20  :  defines 
treason,  54. 

Congress,  power  over  naturalization, 
42,  48,  55,  57. 

Congress,  power  to  establish  post-offices 
and  post-roads,  294;  an  exclusive 
power,  '295:  it  embraces  the  entire 
postal  system,  295.  305;  its  right  to 
exclude  matter  from  the  mails.  295- 
309,  307. 

Consanguinity,  ties  of,  153. 

Conscience,  139,  140. 

Constitution.  British.  49. 

Constitution  of  Greek  Emperor  Anas- 
ta-ius,  232. 

Constitution  of  the  United  States,  31, 
41.  42;  the  supreme  law  of  the  land, 
44,  53:  40,  4s,  52,  55,  57.  58,  00,  02. 
03;  a  government,  not  a  league,  124: 
125,  120.  209-212,  221-223,  253,  254, 
250.  257.  201,  203,  205,  290,  300. 
303-300,  310-314,  317  323.  332,  333. 


INDEX. 


339 


Constitutions,  written,  37. 

Contract,  not  valid  without  a  consider- 
ation. 271. 

Contracts,  gaming,  271,  272. 

Contracts,  hazardous,  270,  271;  object 
of,  270;  lotteries  classed  as,  270. 

Contracts  of  insurance,  272,  273. 

Cooler's  "  Constitutional  Limitations," 
quoted,  85. 

Corporations,  ancient,  195. 

"Corporations"  includes  associations 
and  joint-stock  companies,  103. 

Corporations,  private,  when  public 
agents,  78,  79. 

Cotton,  J.  B.,  05. 

"Counting  the  Electoral  Vote,"  313- 
323. 

Court,  a  temple  of  justice,  1;  the  guar- 
dian of  rights  in  property,  3  ;  cannot 
inquire  into  motives  of  legislature, 
87-91. 

Courts  in  Louisiana,  116-121. 

Cowries,  189. 

Creator,  the  idea  of,  what  it  involves, 
132. 

"  Cyclopedia  of  Universal  Know- 
ledge," quoted,  277. 

Dauphin,  M.  A.,  287,  288;  brings  suit 
against  Postmaster  -  General  Key, 
301. 

Declaration  of  Independence,  the,  178, 
181. 

Demosthenes,  speeches  of,  models  of 
excellence,  224. 

Denization,  power  of,  reserved  to 
States,  48  :  right  of,  does  not  make 
citizens  of  aliens,  48. 

Denizen,  defined  by  Black-tone,  48. 

Denizens,  acts  of  South  Carolina  re- 
lating to,  47. 

Despot,  germ  of,  23. 

Discipline,  armies  without,  positive 
evils.  21;  in  what  it  consists.  21: 
not  a  substitute  for  patrioti.-m,  21; 
coupled  with  patriotism.  21. 

Disease,  326. 

Eldorado,  174. 
Election  of  1876,  33,  34. 


Electoral  Commission,  the  creature  of 
conspiracy,  313. 

Electoral  vote,  duty  of  Congress  to 
count,  316,  317,  319;  mode  of  count- 
ing, 320,  323 ;  the  result  declared, 
320;  duties  of  houses  of  Congress 
when  no  election,  320. 

Emigration,  right  of,  164. 

Engineer,  civil,  199. 

England,  lotteries  in,  276,  277. 

English  colonists  in  America,  charac- 
ters of,  10,  16;  their  "tierce  spirit  of 
liberty,"  11;  why  they  came  to 
America,  13;  repugnance  to  control 
by  British  legislation,  14;  their  char- 
ters, 14;  their  liberty  incomplete,  14  ; 
menaced  by  government  of  England, 
14:  thought  to  have  too  much  lib- 
erty, 15;  their  opinion,  15;  their 
struggles  to  keep  their  liberty,  15. 
177 ;  the  most  sensitive  and  best  in- 
formed upon  their  rights  and  liber- 
ties, 16;  their  descendants  in  Vir- 
ginia and  New  England,  17 ;  then- 
interests  different  from  those  of  mere 
Englishmen,  17 ;  a  government  of 
their  own  necessary,  18;  brought 
with  them  the  rights  of  men,  18; 
taxed  without  their  consent,  177. 

English,  the,  as  colonizers,  9. 

Enjoyment  of  property,  2. 

Entails,  law  of,  193. 

Equality,  105,  166. 

Erie  Canal,  benefits  from,  111. 

Erskine,  Lord,  quoted,  237. 

Europe,  western,  after  the  fall  of  the 
Roman  Empire,  192-  190. 

European  governments,  not  all  possess 
absolute  sovereignty,  51. 

Eustis,  Chief  Justice, 'l03.  104. 

Everett,  Edward.  203. 

Evidence,  object  of.  227:  exclusions  of, 
injurious  to  the  discovery  of  truth. 
228  :  misleading,  should  be  excluded, 
229:  exclusion  of,  when  justified, 
229.  See  Testimony  and  Witnesses. 

Exchange,  a  peculiar  and  characteris- 
tic tie  of  man,  154:  exists  among  all 
men,  154  ;  a  common  standard  of, 
requisite,  189. 


340 


INDEX. 


Expatriation,  right  of,  164,  166. 
Exporting,  profit  in,  203. 

Family,  its  importance  and  value,  152, 
153. 

Farmers  of  the  revenue,  195. 

Fealty,  53. 

Fellow-feeling,  135. 

Fellows,  J.  Q.  A.,  65. 

Fillmore,  Millard,  2-22. 

Foreign  trade,  205. 

France,  state  lotteries  in,  276. 

Franklin,  Benjamin,  179. 

Frederick  the  Great,  quoted,  137;  and 
the  miller,  158. 

Free  banking.     See  Banking. 

Freeburgh,  1!)5. 

Freedom,  the  rightful  end  of  civil  gov- 
ernment, 219. 

Freemen,  law  only  recognized  sover- 
eign of,  218. 

French,  the,  as  colonizers,  9. 

French  colonies  in  America,  9. 

Fulton,  Robert,  203. 

Galileo,  203. 

(rambling,  declared  a  vice  in  Louisi- 
ana, 292. 

Gaming  contracts,  271,  272. 

Georgia,  increase  in  valuation  of  prop- 
erty bv  railroads,  111. 

Gilbert,  Lord  Chief  Baron,  quoted, 
234. 

God,  his  relation  to  his  laws,  132  ; 
works  through  the  instrumentality 
of  means,  133;  the  source  of  law, 
133. 

Government,  nothing  magical  in,  51; 
chief  end  of,  128;  defined,  130;  of 
divine  ordination,  136;  necessary  to 
the  existence  of  man,  136;  progress 
of,  146. 

Government,  American,  whole  system 
popular,  92. 

"Government  of  the  Republican  Party 
in  Louisiana  "  308,  312. 

Governments,  origin  of,  146. 

Governments,  European,  not  all  pos- 
sess absolute  sovereignty,  51. 

Granstein,  George,  ease  of,  40;  refuses 


to  take  oath  of  allegiance  to  South 
Carolina,  43;  denied  citizenship  by 
Judge  Hay,  45. 

Grant,  General  U.  S.,  35,314,  322. 

Gravitation,  130. 

Greenleaf,  Simon,  243. 

Gregory  XIII. ,  Pope,  149. 

Grimes,  Mr.,  of  Iowa,  263. 

Habeas  corpus,  18,  177. 

Hamilton,  Alexander,  57. 

Hampden,  John,  177. 

Happiness,  foundation  of,  2. 

Haraugiere,  Colonel,  163. 

Hazardous  contracts.     See  Contracts. 

Health,  blessings  of,  326. 

Health  regulations,  an  exercise  of  po- 
lice power,  66,  85 ;  right  of  legisla- 
ture to  pass,  86. 

Homer's  picture  of  barter,  190. 

Hooker,  Sir  Joseph,  quoted,  150. 

Hospitals,  public,  a  matter  of  right, 
159. 

Howard,  Senator,  of  Michigan,  262. 

Huguenots,  16,  22. 

Hume,  David,  201. 

Hunt,  William  H.,  65. 

Ideas,  exchange  of,  162. 

Ignorance,  the  foundation  of  despotism, 
128. 

Independence,  sense  of,  foundation  of 
human  happiness,  2. 

Indies,  Council  of  the,  8. 

Insurance,  contracts  of,  272,  273. 

Intellect,  man  endowed  with,  137. 

Intention  to  commit  crime,  proper  sub- 
ject of  inquiry  by  jury,  26. 

Iredell,  Judge,  57. 

Isocrates,  63. 

Italy,  lotteries  in,  276. 

Jackson,  President,  denied  the  right  of 

a  State  to  secede,  123. 
James  II.,  179. 
Jefferson,    La.,   slaughter-nuisance   at, 

08  71. 
Jefferson,    Thomas,    18;    petitions   for 

leave  to  sell    lands    by  lottery,  278, 

281;  his    "Thoughts  on    Lotteries,1' 


INDEX. 


341 


279  ;  obliged  to  qualify  his  system  of  j 

chance,   280;    his   petition   granted, 

281. 

Johnson,  Justice,  90. 
Johnson,  President,  256,  266. 
Judge,  office  of,  121 ;  not  the  prize  of 

partisan  labors,  121. 
Jury,  judge  of  motives,  27,  28. 
Jury,  trial  by,  18,  177. 
Justice,  a  court,  a  temple  of,  1. 
Justice,  the   foundation  and  objection 

of  the  state,  155;  protection  another 

word  for,  156. 
Justinian's  three  precepts,  144. 

Kenner,  D.  F.,  35  n. 

Kent,  Chancellor,  53,  5'J. 

Kentucky,  lotteries  in,  "291. 

Kepler,  203. 

Key,  D.  M.,  Postmaster- General,  300; 

orders  lottery  matter  excluded  from 

the  mails,  300,  301:  sued  by  M.  A. 

Dauphin,   301;   suspends   his   order, 

301,  302. 
Knowledge,   the    parent    of    Liberty. 

J28. 

Labor,   the   condition   of   success   and 
greatness,  215. 

Laplace,  203. 

Las  Casas,  141. 

Lavoisier.  203. 

Law,  signifies  a  rule  of  action,  129, 151: 
applies  to  every  kind  of  action.  129 ; 
the  whole  world  ruled  by.  129  ;  illus- 
trations. 129-132;  phenomena  not 
governed  by.  132  ;  the  universal 
reign  of,  133:  source  of.  133:  man 
commanded  to  regulate  his  conduct 
by.  134:  man's  responsibility  to.  143; 
of  nature,  144;  Justinian's  three  \>re- 
cepts.  144;  natural  and  municipal, 
140:  of  nations.  I4'i.  147:  morals  of. 
are  pure  and  just,  216:  justice  the 
great  end  of.  218:  the  only  recog- 
nized sovereign  of  freemen.  218. 
Law.  natural,  144. 
Law.  physical,  133. 

Laws  of  nature,  liable  to  counteraction, 
132. 


Lawyer,  the  perfect,  216;  duties  of, 
216-217. 

Lawyers  in  history,  219,  220. 

"Lecture  on  the  Law,"  128-187. 

Legan'1,  H.  S.,  quoted,  16. 

Legislation,  a  common  fault  in,  281 ; 
true  aim  of,  289. 

Legislature,  court  cannot  inquire  into 
motives  of,  87-91. 

Liberty,  a  practical  blessing,  1  ;  princi- 
ples on  which  its  existence  and  en- 
joyment depend,  2  ;  more  precious 
than  gold,  37. 

Liberty,"  personal,  158  ;  a  condition  of 
man's  free  agency,  159. 

Liberty,  religious,  love  of,  5. 

Lieber,  F.,  quoted,  20,  23,  125. 

Literature,  founded  on  sympathy,  135. 

Livingston,  Edward,  states  a  common 
fault  in  legislation,  281. 

Locke  quoted.  139. 

Lord  Brougham's  Act,  243,  244. 

Lord  Campbell's  Act,  239. 

Lord  Denman's  Act,  239. 

Lotteries,  fall  within  class  of  hazardous 
contracts,  270;  exert  mischievous  in- 
fluence upon  the  people,  275 ;  in  Italy, 
27li ;  in  France,  276;  in  England,  276, 
277,  287:  common  in  the  United 
States,  277;  frauds  in.  277;  impolicy 
and  ill  effects  of  a  State's  resort  to, 
278:  in  Virginia,  281. 

Lottery,  cannot  be  perfectly  fair. 
274.' 

Lottery,  term  defined,  273,  275:  appli- 
cation of  term,  274. 

Louisiana,  want  of  progress  in.  94 ;  its 
Constitution  a  failure.  95;  its  govern- 
ment defective,  96:  representation  in. 
96;  injustice  to  New  Orleans,  96-100: 
specimens  of  legislation.  100:  crea- 
tion of  banking  corporations  prohib- 
ited. 100;  free  banking  not  wanted 
in.  104:  railroads.  107;  obstruction  to 
internal  improvement,  113,  114:  pro- 
posed tax  for  promoting  railroads, 
114,  115:  judiciary  department  de- 
fective, 116:  obstacles  to  justice.  116- 
120:  objection  to  the  executive  de- 
partment, 120,  121;  wants  national 


342 


INDEX. 


aid  for  internal  improvements,  123: 
secession  undesirable  for,  127;  re- 
fused a  provisional  governor,  262: 
her  constitutional  existence  not  rec- 
ognized, 202:  Constitutions  of.  282, 
28-3,  289;  gambling  declared  a  vice 
in.  292;  government  of  the  Republi- 
can party  in,  308-312. 

Louisiana  Returning  Hoard,  25,  31-39. 

Louisiana  State  Lottery  Company,  in- 
corporation of,  284,  285 ;  objects  and 
purposes,  285;  its  deceptive  state- 
ment, 280;  pays  for  exclusive  privi- 
leges, 287;  exempt  from  taxes,  287: 
the  president's  address,  287, 288,  290: 
its  charter  recognized  in  Constitution 
of  1879,  290  ;  renounces  its  monopoly 
charter  clause,  290;  pays  a  license, 
290;  invites  investigation,  292;  its 
use  of  United  States  mails,  293 ;  its 
matter  excluded  from  the  mails,  300, 
301;  the  Postmaster-General's  order 
suspended,  302. 

Maeaulay,  Lord,  quoted,  304. 

Mackintosh,  Sir  James,  14<i. 

Madison,  James,  56. 

Magna  Charta.  177. 

Man,  a  social  being,  134:  endowed 
with  sympathy.  135;  with  intellect. 
136;  compared  with  animals,  13ii, 
137;  motives  which  operate  upon 
him.  138:  his  responsibility.  143;  as 
a  citi/.en,  148;  his  destiny  to  be  pro- 
gressive. 149:  civilization  his  natural 
state,  150:  no  "ready-made  happi- 
ness'' for,  150;  foundation  of  his 
ethic  character.  151;  his  necessities 
accompanied  with  pleasure.  152. 

Marat,  148. 

Marshall,  Chief  Justice,  58,  90. 

Ma-sachusetN,  increase  in  valuation 
from  railroads,  1  10. 

MayilMwer.fi.  14. 

McCulloeh.  .'.  K..  202. 

Mcllenry.  Judge.  111). 

Medical  students,  address  to.  320,  327. 

Medici,  Catherine  de!,  148,  149. 

Merchants,  IS'J;  two  classes  of,  190;  the 
champions  of  liberty,  207,  208. 


Michelet,  on   the   uniformity  of  laws, 

142. 

Miller,  Justice.  64. 
Milton,  John,  204. 

Money.  African,  189;    Virginian,  189. 
Money  of  account.  190. 
Monopolies,  classes  of.  91:  granted  by 

Parliament,  92;  power  of  the  people 

to  grant,  recognized,  92. 
Moral  codes,  uniform,  141,  142. 
Morality.  141,  142. 
Morton,  0.  P.,  321.  322. 
Motive,  defined,  138. 

Nations,  equal  in  respect  to  each  other, 
146;  may  be  injured  or  benefited  by 
each  other,  147 ;  law  of,  embraced  in 
science  of  law,  147. 

Nations,  law  of,  146.  147. 

Naturalization,  act  establishing,  42, 
43. 

Naturalization,  in  Great  Britain,  only 
by  act  of  Parliament,  48,  49. 

Naturalization,  power  of,  vested  exclu- 
sively in  Congress.  42,  49,  57-  59,  62. 
See  Citizenship. 

Naturalization,  States  cannot  confer, 
47  ;  an  exercise  of  sovereign  power, 
49  ;  Vattel's  definition.  49. 

Nature,  laws  of.  liable  (o  counteraction. 
132. 

Navigation  Act,  British,  178,  208. 

New  England,  motives  of  first  settlers 
in,  religious,  4,  6. 

New  England,  United  Colonies  of,  178. 

New  Orleans,  outstripped  in  the  race 
of  improvement,  94:  her  commerce 
gradually  taken  away,  96,  107 ;  ratio 
of  representation  unjust,  97:  the  seat 
of  government  to  be  not  less  than 
sixty  miles  from,  98;  a  stigma  to  be 
removed,  98;  her  importance  as  the 
seal:  of  government,  99;  a  crevasse, 
99;  her  rivals,  101;  wants  capital, 
101 ;  advantages  of  railroads  to,  108- 
110,  112;  courts  and  judges  of,  116. 
121. 

New  Orleans,  slaughter-house  nuisance 
at.  60-78,  80. 

Newton,  Isaac,  203. 


INDEX. 


343 


New  York,  restraints  upon  private 
banking,  102;  system  of  free  bank- 
ing established,  102. 

Nichols,  Francis  T.,  312. 

North  America,  struggles  for  possession  j 
of,  10. 

Oath,  test,  253,  2tiO. 

Obedience,  absolute,  impossible,  20,  21; 
in  army  and  navy,  cannot  be  de- 
manded, 21. 

Obedience,  necessary  in  general,  21  ; 
conditional,  22. 

Opinion,  139. 

Oracles,  4. 

Orthes,  Viscount,  commandant  at  Bay- 
onne,  21. 

Oysterman  in  New  Orleans,  case  of, 
"84. 

Packard,  Stephen  B.,  308. 

Paley.  William,  quoted,  19ii. 

Parliament,  alone  can  naturalize,  47- 
49 ;  its  power  to  create  a  monopoly, 
92 ;  asserted  the  right  to  tax  the  col- 
onies, 185. 

Patriotism,  coupled  with  discipline,  21. 

Paul  the  Apostle,  quoted,  143. 

Pelew  Islander,  154. 

Pelican,  as  a  national  emblem,  127. 

Pennington,  Admiral,  22. 

Personal  liberty,  158,  159. 

Persuasion,  the  noble  art  of.  224. 

Phenomena,  not  governed  by  law, 
132. 

Philip  II.  of  Spain,  149. 

PlKL-nician  merchants,  the  champions 
of  liberty,  207. 

Physician,  duties  of,  327. 

Physiology,  134. 

Pilgrim  Society  of  Massachusetts,  175. 

Poland,  condition  of,  196. 

Police  power,  protection  of  health 
within,  77  ;  right  of  State  to  exer- 
cise. 60,  82,  83,  86. 

•'  Political  Affairs  in  Louisiana,'"  94- 
127. 

Pope.  Alexander,  quoted,  5. 

Post-offices  and  post-roads,  power  of 
Congress  to  establish,  294. 


Power,    exercise    and    abuse    of,    23, 

24. 
Power,  public,  founded  on  confidence, 

22. 
President,  office  of,  in  United  States, 

37. 

Press,  liberty  of,  296,  297,  304,  305. 
Preston,  Judge,  103,  104. 
Primogeniture,  law  of,  192. 
Property,  right  of,  assailed,  2;  enjoy- 
ment of,  2;  its  surest  guarantees,  3; 

essential  to  man,  160;  its  relation  to 

the  material  world,  160. 
Property,   sense   of,   its   purpose,  152; 

inherent  in  man,  160. 
Property,  use  of,  right  to  regulate,  86. 
Protection,   another   word   for  justice, 

156  ;  what  it  includes,  156. 
Protection    of    health,    within    police 

power,  77. 
Puritanism  in  England  and  America, 

11,  12. 

Railroads,  benefits  arising  from,  108- 
110;  increase  in  value  of  property 
along,  110,  111;  in  Massachusetts, 
110;  radiating  from  Boston,  110; 
speed  of  transportation  by,  112;  tax 
proposed  in  Louisiana  for  promoting, 
115. 

Raleigh,  Sir  Walter,  174. 

Religion,  a  factor  in  colonizing  North 
America,  4,  6,  7. 

Religion,  men  never  existed  without, 
4;  office  of,  5  ;  society  interested  in, 
5 ;  affords  two  powerful  agents  of 
moral  it_v,  5. 

"Report  upon  the  Law  of  Evidence," 
226-252. 

Republican  party  in  Louisiana,  308- 
312. 

Responsibility.  143. 

Re-turning  Board,  Louisiana,  31-39. 

Reubel,  148. 

Revenue,  farmers  of,  195. 

Revolution,  American,  immediate 
causes  of,  180. 

Right,  what  is,  154:  the  condition  of, 
155:  founded  on  reciprocity.  157. 

Rights,  absolute,  158,  159. 


344 


INDEX. 


"Rights  of  the  States,"  253-269. 

Robespierre,  148. 

Rome,  founded  upon  an  agrarian  law, 
172;  growth  of  inequality  in,  172; 
independence  of  the  poor  citizen  hard 
to  maintain,  172;  lands  cultivated  by 
slaves,  172;  condition  of  landless  cit- 
izens, 173;  method  of  forming  col- 
onies, 173. 

Roselius,  Mr.,  64. 

"Round  robin,"  the  sailors',  22. 

Rousseau,  J.  J.,  quoted,  151. 

Seaboard,  the  natural  seat  of  liberty, 
204. 

Seasons,  dependent  on  law,  130. 

Secession,  doctrine  of.  settled  forever, 
255. 

Secession,  right  of,  advocated  by  Sen- 
ator SouhS  123  -126. 

Seward,  W.  II.,  263. 

Sidney,  Algernon,  177. 

'•  Slaughter-House  Cases,  Argument  in 
the,"  64  93. 

Smith,  Adam,  quoted,  191. 

Society,  deeply  interested  in  religion, 
5;  cannot  exist  without  government, 
134.  136;  commanding  and  obeving 
the  two  foundations  of.  134,  170:  of 
divine  ordination,  136  ;  necessary  to 
civilization,  150. 

Socrates,  a  citizen  of  the  world,  147. 

Soule,  1'ierre,  senator  from  Louisiana, 
advocates  right  of  secession,  123- 
12<i. 

South  America,  eoloni/ation  in,  8,  !i; 
cruelty  of  Spaniards  in,  140.  141. 

South  Carolina,  acts  relating  to  natu- 
ralization, 46  :  arts  relating  to  deni- 
zens. 47  :  benefits  to,  from  railroads, 
111. 

Soiitliern  States,  anxious  to  return  to 
the  I'nion,  254,  266:  their  condition 
after  the  civil  war,  254,  258;  Presi- 
dent I'liichanan's  position  toward, 
255,  'J6  1  ;  true  policy  required  their 
n-adnii"inn  to  the  t.'nion.  257;  with- 
out repivM-ntatinn  in  Congress,  257: 
should  be  accorded  a  generous  treat- 
ment. -J5S  261).  267,  268:  their  pro- 


gress in  material  development,  261 ; 
worth  of  character  of  the  people, 
261 ;  thirteenth  amendment  ratified 
by,  263. 

Sovereignty,  absolute,  unfitted  for  hu- 
man happiness,  51. 

Sovereignty,  defined,  52;  the  great  end 
of,  52,  53. 

Spain,  object  of  her  settlements  in 
America,  8 ;  the  government  of  her 
colonies  a  strict  Spanish  monopoly, 
8  :  effect  of  misrule  on  her  colonies, 
8,  9. 

Spaniards,  cruelty  of,  in  South  Amer- 
ica, 140,  141. 

Spartan  obedience,  24,  134,  170. 

''Speech  for  Bell  and  Everett,"  328- 
336. 

Spinoza,  quoted,  144. 

Sprague,  Senator,  of  Rhode  Island, 
263. 

St.  Bartholomew,  massacre  of,  21,  148. 

St.  Domingo,  174. 

St.  Just,  148. 

Starkie.  Thomas,  249. 

State,  the,  duties  of.  22 ;  a  society  of 
individuals,  155;  its  foundation,  155; 
speaks  through  laws,  155;  called  a 
"jural  society,"  155:  exists  by  ne- 
cessity, 156;  its  legitimate  objects, 
157;  it>  obligation  to  found  institu- 
tions of  learning,  159  ;  gifts  by,  161  ; 
interference  in  private  affairs,  161  : 
obedience  owed  to,  168. 

State,  cannot  require  oath  of  allegiance, 
50;  has  power  to  protect  the  public, 
health,  !I3. 

States,  rights  of  the,  253  269. 

Steam,  application  of,  benefits  from, 
201,  205,  206. 

Story,  Judge,  5'.);  quoted,  185. 

Stuart.  Charles,  11. 

Sunnier,  <  'hades,  264. 

Sympathy,  man  endowed  with.  135: 
u.-es  of,  135. 

Taxes  in  the  Middle  Ages,  194. 
Tenants  at  will.  193. 
Test  oath,  253,  260. 
Testimony,  false,  231.  233.  235. 


INDEX. 


Testimony,  sanctions  to  secure  the 
truth  of,  235,  236. 

Thermopylae  24,  170. 

Thiers,  L.  A.,  quoted,  304. 

Thurman.  Senator,  322. 

Tobacco,  the  money  of  Virginia,  189. 

Towns  in  the  Middle  Ages,  194;  priv- 
ileges granted  their  inhabitants,  194, 
195:  made  corporations,  195;  wealth 
of  their  inhabitants,  195. 

Trade,  foreign,  205. 

Traders,  free,  194. 

Trading  towns,  196. 

Treason,  defined  by  the  Continental 
Congress,  54;  under  the  Articles  of 
Confederation,  54,  56 ;  under  the  Con- 
stitution, 55 ;  the  highest  breach  of 
allegiance,  55,  125. 

Trial  by  jury,  18,  177. 

'•Tribute  to  Mr.  Tulane,"  324,  325. 

Tucker,  Judge,  48,  52. 

Tulane,  Paul,  tribute  to,  324,  325. 

Tulane  University.  128. 

Tully,  quoted,  105. 

Union,  right  the  condition  of,  155. 

Union,  the,  results  of,  127. 

United  Colonies  of  New  England,  178. 

United  States,  its  three  forms  of  gov- 
ernment, 186  ;  lotteries  very  com- 
mon in,  277 :  frauds  practiced  in, 
277. 

Utterance,  right  of,  162,  103. 


Vattel,  definition  of  naturalization,  49; 

on  sovereignty,  52. 
Virginia,  tobacco  the  money  of,  J89: 

lotteries  in,  281. 
Virtue,  the  law  of,  143. 

Wade,  Mr.,  of  Ohio,  203. 

Warren,  General  Joseph,  quoted,  11. 

Washington,  George,  222. 

Washington,  Judge,  58,  59. 

Watt,  James,  203. 

Wavne.  General  Anthony,  163. 

Webster,  Daniel,  222  ;  quoted,  185, 
200. 

Webster's  dictionary,  quoted,  273. 

Wells,  Madison  J.,  35  n. 

"  Westminster  Review,"  quoted,  303. 

Whigs,  advocates  of  free  banks,  102, 
118. 

Whitney,  Eli,  203. 

Witchcraft  delusion.  12,  13. 

Witnesses,  incompetent,  in  the  Middle 
Ages,  232 ;  under  the  law  of  ancient 
Rome,  232 ;  in  Scotland,  232 ;  in 
England,  232;  in  France,  233. 

Witnesses,  interested,  237-241;  parties 
to  suit,  241 ,  242 ;  husband  and  wife 
as,  243-245  ;  ascendants  and  descend- 
ants as.  245;  atheists  as,  246,  247: 
infamous  persons  as,  248-249. 

Women  incompetent  as  witnesses,  232, 
233. 

Writing,  162;  alphabetical,  207. 


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